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Jharkhand High Court · body

2009 DIGILAW 1196 (JHR)

Sushil Kumar Gupta v. State of Jharkhand

2009-08-26

R.R.PRASAD

body2009
Order This application has been filed for quashing the orders dated 5.12.2008 (Annexure-2) and 15.12.2008 (Annexure-2) passed by the learned Sub-Divisional Judicial Magistrate, Latehar and also for quashing of the order dated 17.11.2008 (Annexure-2) passed by the Chief Judicial Magistrate, Latehar in G.A. No. 310 of 2008 arising out of Balumath P.S. Case No. 56 of 2008 whereby courts having accepted the plea of Imran Ansari, Md. Junaid Anwar and Kirani Oraon, respondents 2, 3 and 4 of being juvenile on the date of occurrence declared them juvenile. That apart, the order dated 31.3.2009 (Annexue-4) passed by the learned Sessiems Judge, Latehar has also been sought to be quashed whereby learned Sessions Judge refused to set aside .the aforesaid three orders. 2. The facts giving rise to this application are that on 24.7.208 one Mahesh Gupta @ Lucky, nephew of the petitioner was kidnapped for which Lalpur P.S. Case No. 134 of 2008 was instituted under Sections 364A, 201/34 of the Indian Penal Code. In course of investigation, some of the miscreants were nabbed by the police, who disclosed that the victim has been murdered and then Section 302 of the Indian Penal Code was added. However, before the accused were arrested by the police they had resorted to firing upon the police party and, as such, another case was lodged as Balumath P.S. Case No. 56 of 2008 under Sections 353 and 307 of the Indian Penal Code and also under Section 27 of the Arms Act. 3. It appears that the accused persons first were remanded in Lalpur P.S. Case No. 134 of 2008 but when production warrant was issued by the Chief Judicial Magistrate, Latehar, they were remanded in jail custody in connection with Balumath P.S. Case No. 56 of 2008. 4. On completion of investigation of Balumath P.S. Case No. 56 of 2008, police submitted charge sheet on 14.11.2008 and then on 25.11.2008 cognizance was taken. Thereupon on 5.12.2008 an application was filed on behalf of Imran Ansari stating therein that he is a juvenile as his date of birth recorded in school leaving certificate granted by S.S. High School, Balumath is as 1.9.1991 and, therefore, the prayer was made to send his case to Juvenile Justice Board. The said application was accompanied by Xerox copy of the school leaving certificate only. The said application was accompanied by Xerox copy of the school leaving certificate only. On that application, learned Sub-Divisional Judicial Magistrate, Latehar, vide order dated 5.12.2008 declared him juvenile as the certificate does indicate the age of the appellant Imran Ansari less than 18 years and, therefore, he sent the record before the Juvenile Justice Board. Similarly, an application was filed on behalf of Md. Junaid Anwar on 6.12.2008 stating therein that as per the certificate granted by Jharkhand Academic Council and also by Rajkiyakrit Vidyalaya, 8alumath, he is aged about 15 years and hence, he be declared as Juvenile. Accordingly, the court putting reliance on the certificate declared him Juvenile, vide order dated 15.11.2008 by assessing his age less than 16 years. 6. Again, an application for declaration of the appellant Kirani Oraon as Juvenile was filed on 24.10.2008 annexing therewith 0 photocopy of the certificate granted by the Principal, Rajkiyakrit Vidyalaya, Balumath. Accordingly, learned Chief Judicial Magistrate declared him as Juvenile, vide its order dated 17.11.2008 and at the same time record was ordered to be sent before the Juvenile Justice Board for disposal. 7. All the three orders were challenged before the learned Sessions Judge, Latehar, who by its order dated 31.3.2009 (Annexure-4) held those applications not maintainable and hence, declined to interfere with the matter. However, it was observed that Juvenile Justice Board after taking evidence and after giving opportunity to the parties will pass the order on the point of age of the appellants. 8. Being aggrieved with the aforesaid orders, the petitioner has preferred this application. 9. However, it was observed that Juvenile Justice Board after taking evidence and after giving opportunity to the parties will pass the order on the point of age of the appellants. 8. Being aggrieved with the aforesaid orders, the petitioner has preferred this application. 9. Learned counsel appearing for the petitioner submits that learned Sessions Judge by assuming that the aforesaid three orders have been passed under Section 7 of the Juvenile Justice Act directed the Board to assess the age of the persons sent before him after taking into evidence in this regard but, in fact, the orders have been passed under Section 7 A of the Act as all the three respondents had put forth their claim of Juvenility before the learned Sub-Divisional Magistrate or the Chief Judicial Magistrate by claiming themselves to be less than 18 years and the learned Sub-Divisional Judicial Magistrate/Chief Judicial Magistrate, Latehar without holding enquiry properly held the appellants to be juvenile only on the basis of Xerox copy of the school leaving certificate and photocopy of the certificate so far the appellants Imran Ansari and Kirani Oraon are concerned whereas Md. Junaid Anwar was held juvenile on the basis of certain certificates but those documents do not have evidentiary value to prove the age and hence, all the aforesaid three orders are quite illegal and are fit to be set aside and at the same time order passed by the learned Sessions Judge is also bad as he has passed the order on wrong assumption of the facts. 10. As against this, learned counsel appearing for the respondents submits that the orders need not to be interfered with as learned Sessions Judge had given an opportunity to the parties to lead their respective evidences so that Juvenile Justice Board may assess the age of the persons brought before it. 11. Before proceeding in the matter one needs to take notice of Sections 7 and 7A of the Act. Section 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which is analogous to Section 8 of the repealed Juvenile Justice Act, 1986 reads as follows: "7. 11. Before proceeding in the matter one needs to take notice of Sections 7 and 7A of the Act. Section 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which is analogous to Section 8 of the repealed Juvenile Justice Act, 1986 reads as follows: "7. Procedure to be followed by a Magistrate not empowered under the Act.-(1) When any Magistrate not empowered to exercise the powers of a Board under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence, is a juvenile or the child, he shall with out any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding. 2. The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it." 12. Subsequently Section 7A was incorporated in the new Act by Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 with new subject matter relating to procedure to be followed when claim of Juvenile is raised before any court. The said provision reads as follows: "7 A. Procedure to be followed when claim of juvenility is raised before any court.-(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person .is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect." 13. Thus, there appears to be clear distinction in between the provision as contained in Section 7 and Section 7 A of the Act. As per Section 7 when a person is brought before any Magistrate (not empowered to exercise the powers of a Board) and if that person appears to be a juvenile or a child he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the competent authority, i.e. Juvenile Justice Board having jurisdiction over the proceeding. The said provision does indicate clearly that the Magistrate would resort to that provision only when it is apparent that a person brought before him is a juvenile. However a situation may be that if a person is brought before the court, the court may feel difficulty in forming an opinion that the person brought before him is juvenile or not. To deal with such situation, the Act enacted in the year 2000 was silent about the course to be adopted by the court but subsequently by Act 33 of 2006, Section 7 A was incorporated stipulating therein that whenever a claim of juvenility is raised before any court or in order to determine the age of the person on the date of commission of the offence, the court shall make an enquiry to deter mine the age of such person. . 14. Section 7 A further stipulates that if the court finds a person to be a juvenile on the date of commission of the offence, he shall forward the juvenile to the Board for passing appropriate order and the sentence, if any. Consequently, if the court after holding a person juvenile refers the matter before the Board, the Board is to proceed with the enquiry to hold a person guilty or not and to pass order relating to sentence. 15. Consequently, if the court after holding a person juvenile refers the matter before the Board, the Board is to proceed with the enquiry to hold a person guilty or not and to pass order relating to sentence. 15. Here in the instant case, the Court of Chief Judicial Magistrate/Sub-Divisional Judicial Magistrate seems to have resorted to the provision as enshrined under Section 7 A of the Juvenile Justice Act as all the respondents by filing applications. claimed themselves to be the juvenile and in order to substantiate his claim, Xerox copy of the school leaving certificate of S.S. High School, Balumath was produced on behalf of Imran Ansari whereas photocopy of certificate granted by the Principal, Rajkiyakrit Vidyalaya, Balumath was produced on behalf of Kirani Oraon and in case of Junaid Anwar, original certificates issued by Jharkhand Academic Council and also Rajkiyakrit Vidyalaya, Balumath were produced and only on that basis, the courts below either Chief Judicial Magistrate or Sub-Divisional Judicial Magistrate, Latehar declared all the appellants to be juvenile which orders are illegal as the said orders are based either on the documents which were inadmissible or based on the documents though were admissible under Section 35 of the Evidence Act but the same had no evidentiary value to prove the age of a person in absence of the material on which age was recorded in the original documents produced in case of Junaid Anwar. 16. The question about the evidentiary value of the testimonials/documents showing age of a person in absence of material on which age was recorded in those testimonials/documents has been dealt with by the Hon'ble Supreme Court in a case of Birad Mal Singhvi vs. Anand Purohit ( AIR 1988 SC 1796 ) and has laid down the proposition as follows: " ...To render a document admissible under Section 35, three conditions must be satisfied, first, entry that is relied on must be one in public or other official book, register of record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded .... " 17. Here, in the instant case, admittedly photocopy/Xerox copy of the certificate in case of respondents Imran Ansari, and Kirani Oraon were placed whereas original certificate of the testimonies were produced in case of Md. Junaid Anwar but nothing had been placed before the court to show as to on what basis entries regarding age had been made in those documents and, therefore, assessment of the age made by the courts either by the Chief Judicial Magistrate or by the Sub. Divisional Judicial Magistrate is based on the documents which had no evidentiary value and as such, any finding regarding age of respondents 2 to 4 recorded by the courts below is quite erroneous and hence, the same are hereby set aside. 18. At the same time it be stated that the courts below as has been noticed above had resorted to provision contained in Section 7 A of the Act for assessment of the age of the respondents 2 to 4 but the learned appellate court seems to have taken those orders to have been passed under Section 7 of the Act and under that assumption, it has been observed that Juvenile Justice Board after giving opportunity to the parties will record the finding relating to the age of the respondents 2 to 4 which apparently appears to be erroneous as I have already noticed that once finding regarding age of a person is re. corded in terms of Section 7 A of the Juvenile Justice Act and the matter is forwarded to the Board, the Board is required to proceed with the matter to find out guilt or innocence of the person and then to record order of sentence if the person is found guilty. 19. Under that situation the order passed by the appellate court is hereby set aside 20. In the result this application is allowed and the matter is remanded to the Court of Sub-Divisional Judicial Magistrate, Latehar to hold an enquiry and to pass. 19. Under that situation the order passed by the appellate court is hereby set aside 20. In the result this application is allowed and the matter is remanded to the Court of Sub-Divisional Judicial Magistrate, Latehar to hold an enquiry and to pass. A fresh order in accordance with law after taking into consideration the evidences as may be necessary in order to determine the age of the respondents 2 to 4.