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2007 DIGILAW 1896 (ALL)

DANISH v. STATE OF U P

2007-07-16

VINOD PRASAD

body2007
VINOD PRASAD, J. Danish the re visionist has questioned the correctness of the order dated 14. 11. 2006, passed by Additional Sessions Judge, Court No. 1, Bareilly, in Criminal Appeal No. 122 of 2006, filed by the State, by which appellant State had challenged the correctness of the order dated 21. 9. 2006, passed by Juvenile Justice Board, Bareilly. The appeal of the State has been allowed in part by the im pugned order, in respect of summoning of documents from Gleen Children School, hence this revision by the accused. 2. Brief facts of the case are that on 5. 8. 2006, at about 1. 30 p. m. , Geeta Agrawal and Reetu Agrawal, the maternal aunts of the informant Piyush Kumar Agrawal were assaulted by three assailants by sharp edged weapons in their house, situated at 146, Civil Lines district Bareilly in front of ICICI Bank. FIR, annexure No. 1, in respect of the incident was scribed by the infor mant Piyush Kumar, who lodged it at P. S. Kotwali, district Bareilly, as Crime No. 2738/06 for offences under sections 452, 302, 323, 394 and 411 IPC. 3. Follow up investigation surfaced the complicity of the revisionist in the aforesaid crime. On 26. 8. 2006 the applicant claimed juvenility before the CJM, Bareilly, mentioning his date of birth as 3. 7. 1990. The application of the revisionist applicant was contested both by the informant and the State. The CJM, Bareilly, vide his order dated 26. 8. 2006, submitted the case of the revisionist before the Juvenile Justice Board, Bareilly for determination of his age. Mohd. Hasan father of the revisionist was examined by the Juvenile Justice Board, who, according to the case of the revisionist, stated the date of birth of the revisionist to be 3. 7. 1990. Documentary evidences filed in support of the proof of age included High School Certificate and transfer certificate wherein the same date of birth of the revisionist were recorded. The Juvenile Justice Board also examined Subodh Kumar Saxena, Manager and Sunil Kumar Sharma Clerk of Reena Model High School, Bareilly, as C. W. 1 and C. W. 2. They also proved the recorded age of the revisionist as 3. 7. 1990 in the school docu ments. 4. On 14. 9. 2006 prosecution filed an application for getting the revisionist medi cally examined. They also proved the recorded age of the revisionist as 3. 7. 1990 in the school docu ments. 4. On 14. 9. 2006 prosecution filed an application for getting the revisionist medi cally examined. Pending disposal of the aforesaid application, prosecution filed another application on 21. 9. 2006 with the prayer that documents from the Gleen Children School regarding admission of the revisionist be also summoned before the age of the revisionist is determined. 5. Juvenile Justice Board on 21. 9. 2006 rejected both the aforesaid applications filed by the prosecution for medical examination as well as summoning of the record of the Gleen Children School. Aggrieved by the aforesaid order of the Juvenile Justice Board, State preferred criminal Appeal No. 122/06, State v. Danish and others, which appeal was partly al lowed by Additional Sessions Judge, Court No. 1, Bareilly vide impugned order dated 14. 11. 2006. The lower Appellate Court re jected the prayer for medical examination as was prayed for by the State but allowed its prayer for summoning of the document of Gleen Children School, which applica tion was filed by the State on 21. 9. 2006. Hence, this revision challenging the order passed by the lower Appellate Court by the accused. 6. I have heard Sri D. S. Misra, learned Counsel for the revisionist, Dr. Arun Srivastava learned Counsel for the respondent and the learned AGA in op position. Judgement was reserved in this revi sion on 13. 12. 2006. Subsequent there to on 28. 3. 2007 Sri D. S. Misra also filed written submissions, which was taken on record. 7. Sri D. S. Misra, learned Counsel for the revisionist has contended that im pugned order is bad in law and there was no reason for the lower Appellate Court to intervene and set aside the order passed by Juvenile Justice Board rejecting both the applications filed by the State. According to his submission the order of Juvenile Justice Board dated 21. 9. 2006 was an interlocutory order and the appeal before the lower Ap pellate Court was not maintainable. He further contended that Juvenile Justice Board had passed the order keeping in view Rule 22 (5) of the Juvenile Justice Rules, 2004 and therefore, also impugned order is bad in law. He further submitted that Rule 22 (5) of the Juvenile Justice Rules has not been taken note of by the lower Appellate Court. He further contended that Juvenile Justice Board had passed the order keeping in view Rule 22 (5) of the Juvenile Justice Rules, 2004 and therefore, also impugned order is bad in law. He further submitted that Rule 22 (5) of the Juvenile Justice Rules has not been taken note of by the lower Appellate Court. It is further contended that District Government Counsel (DGC) was not the aggrieved person and there fore, he had no right to maintain the appeal before the Sessions Judge, concerned. In support of his contention learned Counsel has relied upon a judgment of the Apex Court in Assistant Collector of Central Excise, Madras v. V. Krishna Murti and others. 1997 (34) ACC 655 Sri D. S. Misra further contended that even the prosecution has admitted that the age of the revisionist is recorded in the School Certificate as 7. 10. 1990 and therefore also the impugned order is bad in law. His fur ther contention is that the application for summoning of the document and medical examination were not filed by the Public Prosecutor before the Juvenile Justice Board but same was filed by the informant and the said applications therefore were not maintainable. He further submitted that the application of the prosecution dated 21. 9. 2006 was not maintainable in view of Rule 22 (5) of the Juvenile Justice Rules. Sri Misra further submitted, on the strength of the judgment in Ajai alias Monu v. State of U. P. 2006 (55) ACC 847 and Ravindra Singh Gorkhi v. State of U. P. , 2006 (55) ACC 458 that the impugned order is bad in law and deserves to be set aside. He further submitted that documents of Gleen Children School were filed by the revision ist himself and therefore, the impugned order passed by the lower Appellate Court be set aside. Sri D. S. Misra has also referred some of the judgments in the written sub missions filed by him. 8. After hearing learned Counsel for the revisionist and learned AGA in support and opposition and after perusal of the im pugned order dated 14. 11. 2006, I find that all the contentions raised by learned Coun sel for the revisionist are not tenable. 9. The first and foremost it is men tioned that in this revision the whole order dated 14. 11. 11. 2006, I find that all the contentions raised by learned Coun sel for the revisionist are not tenable. 9. The first and foremost it is men tioned that in this revision the whole order dated 14. 11. 2006 passed by the lower Ap pellate Court in Criminal Appeal No. 122/06 State v. Danish under section 52 of Juvenile Justice Act has been challenged. A perusal of the aforesaid order of the lower Appellate, Court indicates that in respect of application dated 14. 9. 2006, appeal filed by the State was dismissed. In such a view the present revisionist was not an aggrieved person to file a revision before this Court in respect of the said application. To that ex tent the memo of this revision is wholly defective in as much as the prayer of getting the revisionist medically examined stood rejected by both the lower Courts and hence the revisionist was not an ag grieved person by the aforesaid order. 10. Coming to the decision of the lower Appellate Court on another applica tion dated 21. 9. 2006, I find that the order passed by the lower Appellate Court is ab solutely justified. The purpose of Juvenile Justice Act under section 3 and 26 is to de termine the correct age of an offender whether he is a juvenile or not ? Provision of Act is a beneficial legislation for the Ju venile offender for their care and protec tion but it is not a weapon in the hands of other offenders to be used as shield to es cape the rigours of law and penalty. The age of the juvenile offender has to be proximately determined on the basis of all available records so that benefit of the Act be given to the deserving juveniles only. If major offenders above the age of 18 years are allowed to silhouettes their guilt behind the lame excuse of juvenility the very pur pose of the Act will erode. The age of the accused has to be determined after looking into all the available materials. In such a view I find no illegality in the reasoning adopted by the lower Appellate Court. The age of the revisionist has not been deter mined as yet. Revisionist accused is free to challenge the document which the prose cution wanted to be produced before the Juvenile Justice Board. In such a view I find no illegality in the reasoning adopted by the lower Appellate Court. The age of the revisionist has not been deter mined as yet. Revisionist accused is free to challenge the document which the prose cution wanted to be produced before the Juvenile Justice Board. There was no harm in summoning the said documents, as it would have fostered the cause of justice. It is reminded here that the applicant was charged with a serious offence of murder where the minimum sentence is life im prisonment. Taking into consideration that aspect of the matter, if the lower Appellate Court formed an opinion that, if offender has been charged with an offence of man slaughter, then the benefit of Juvenile Jus tice Act should not be afforded to him as a matter of course, no fault can be find with such an opinion of the lower Appellate Court. An inquiry for determination of age of offender of such offence should be con ducted in a meaning full manner. It is pointed out that the inquiry as is contem plated under the Act is not an empty for mality but has to be conducted in such a manner so as to bring forth the correct age of the accused person. It is because of this reason that the inquiry under the Juvenile Justice Act permits taking of evidence as a mandatory requirement. Section 49 of the Act requires three things to be done by the competent authority. Firstly, that if a per son is brought before it as a juvenile or child, then the competent authority has to make due inquiry for determining his age. Secondly that for the purpose of such an inquiry it shall take such evidence as may be necessary. It is noted that the affidavit has been specifically excluded from the purview of evidence to be taken by the competent authority. Thirdly that after re cording of such evidence a finding has to be recorded whether the person is a juve nile or a child nor not stating his age as nearly as may be. 11. From the above three require ments it is clear that the intention of the legislature was that no body should be al lowed to reap the benefit of the Act with out being a juvenile. 11. From the above three require ments it is clear that the intention of the legislature was that no body should be al lowed to reap the benefit of the Act with out being a juvenile. Viewed from such an angle, it cannot be said that if the prosecu tion wanted to bring on record the docu ment from Gleen Children School of ad mission in Class 1st then it was acting be yond its authority and rights or with malafides. It also cannot be said that if such a prayer of the prosecution is allowed by the lower Appellate Court it passed the order contrary to law against the principles of natural justice or that its order, in any way, is stultifying the fair course of justice. 12. Coming to the judgment relied upon by the learned Counsel for the appli cant none of the judgment is relevant for the purpose of deciding the controversy involved in the present case. 13. Learned Counsel for the revision ist has vehemently contended that the DGC is not an aggrieved person and therefore had no right to maintain the appeal before the lower Appellate Court. The said con tention of the learned Counsel for the revi sionist is wholly meritless. State is not ag grieved by the action taken by the DGC who represents the State. It is the cardinal principal of law that if the State is not ag grieved by any action taken by its Counsel then accused cannot say that the action by the DGC is against the law. If any body at all could have challenge the action taken by the DGC, it would have been only the State and no body eke. Further, since the DGC is in-charge of the case and conducts the prosecution on behalf of the State, he cer tainly can maintain an appeal on behalf of the State against an order passed by the Juvenile Justice Board by which the State feels aggrieved. 14. Attour, I have gone through the order passed by Juvenile Justice Board, dated 21. 9. 2006. So far as the application for summoning of the documents of Gleen Children School was concerned the said aspect of the matter was not examined by the Board at all. 14. Attour, I have gone through the order passed by Juvenile Justice Board, dated 21. 9. 2006. So far as the application for summoning of the documents of Gleen Children School was concerned the said aspect of the matter was not examined by the Board at all. The Board over looked the fact that summoning of those document from Gleen Children School would have facilitated in reaching a decision and would have brought such evidences before it which would have been relevant and ger mane for deciding the controversy in volved in the case before it. 15. From the above discussion, I do not find any merit in this revision which stands dismissed. Revision Dismissed. .