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2009 DIGILAW 34 (CAL)

Munkhus Sk. v. State

2009-01-27

ARUNABHA BASU

body2009
Judgment :- (1) Heard learned Advocate for the petitioner and the learned Advocate for the State. (2) The revisional application under Section 401 read with Section 482, Cr.P.C. is directed against an order dated 18.9.08 passed by the learned Addl. Sessions Judge, 1st Court, Suri. in connection with Sessions Case No. 40 of 1986 corresponding to G.R. Case No. 559 of 1981. The learned Court below rejected the plea submitted by the petitioner herein that on the date of occurrence he was juvenile in conflict with law and as such, the separate procedure as to enquiry of the juvenile in conflict with law is required to be followed. Such procedure is required to be adopted only after decision is arrived by the learned Court below that on the date of occurrence the petitioner herein was juvenile within the meaning of the Act and such decision can be arrived only after conducting necessary enquiry. So far as the present case is concerned, the learned Court below took into consideration a certificate issued by the Panchayet but did not accept the same mainly relying on the decision of the Supreme Court in Pratap Singh v. State of Jharkhand reported in (2005)3 SCC 551 : 2005)1 C Cr LR SC) 281. (3) It is the contention of the learned Advocate for the petitioner that while passing the order dated 18.9.08, the learned Court below lost sight of the fact about the provisions under Section 7 A of the Juvenile Justice (Care and Protection of Children) Act, 2000. By way of amendment, the provision under Section 7 A was inserted by Act 33 of 2006. The said provision is set out below: 7A. Procedure to be followed when claim of juvenility is raised before any Court. By way of amendment, the provision under Section 7 A was inserted by Act 33 of 2006. The said provision is set out below: 7A. 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. (4) The learned Advocate for the State also drew the attention of this Court to the Juvenile (Care and Protection) Rules, 2007. Under clause 12 of the aforementioned rules, a procedure is prescribed for determination of the age of the juvenile. It is evident that whenever a plea is raised by any person that on the date of occurrence he was juvenile in conflict with law, it is mandated by Section 7A of the Act vis-a-vis Rule 12 of the aforementioned Rules that necessary enquiry is required to be conducted by the Court before whom such plea is raised. Such enquiry is not an idle formality as because the evidence is required to be taken and: a positive finding must be recorded by the Court determining the age of the juvenile in order to ascertain whether the person is a juvenile in conflict with law on the date of occurrence. Such enquiry is not an idle formality as because the evidence is required to be taken and: a positive finding must be recorded by the Court determining the age of the juvenile in order to ascertain whether the person is a juvenile in conflict with law on the date of occurrence. Nature and gravity of the .offence or its long continuation cannot be a ground to infuse to conduct any such enquiry in terms of provisions under Saetion 7A of the Act. It is clear from the language of Section 7A of the Act that a claim as to juvenility may be raised before any Court and it shall be recognized at any stage even after final disposal of the case, in view of the specific language as incorporated in Section 7A of the Act the learned Court below should have taken into consideration of the provision under Section 7A of the Act and then to deal with the matter in order to ascertain the age of the petitioner herein on the date of commission of offence in terms of the provision as inserted by the statute and by following the procedure as to determination of age as prescribed in the rule mentioned above. (5) Under these circumstances, the order dated 18.9.08 passed by the learned Court below is required to be set aside and the same is set aside accordingly. The petitioner herein is permitted to file an application before the learned Court below once again and when such application is filed, the teamed Court below shall proceed with the matter in terms of direction as passed in the body of this order and also in terms of provisions under section 7A of the Act and clause 12 of the rules as aforementioned. The petitioner is directed to file necessary application positively within a period of 15 days from the date of the order. (6) Let Xerox plain copy of the order duly counter signed by the Asstt. Registrar (Court) be given to the learned Advocate for the parties on their usual undertaking. (7) Criminal Section is directed to supply urgent Photostat copy of the order to the learned Advocate for the petitioner as and when applied for.