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2009 DIGILAW 3799 (ALL)

MONU @ CHHOTA @ ASHISH v. STATE OF U. P.

2009-12-17

SUBHASH CHANDRA AGARWAL

body2009
JUDGMENT Honble Subhash Chandra Agarwal, J.—This revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 is directed against the order dated 13th November, 2007 passed by the Addl. Sessions Judge/F.T.C. No. 4, Muzaffar Nagar in S.T. No. 1462 of 2007, State v. Arif and others whereby the application of accused-revisionist Monu @ Chhota @ Ashish dated 5.11.2007 for declaring him juvenile in conflict with law was rejected. 2. Heard Sri Onkar Singh, learned counsel for the revisionist, learned AGA for the State and Sri Pankaj Bharti, learned counsel for respondent No. 2, Nafees (complainant). 3. In brief the facts are that the revisionist Monu @ Chhota @ Ashish is an accused in the aforesaid S.T. No. 1462 of 2007. On 5.11.2007 an application was moved by him before the Court below stating therein that he was minor on the date of incident and the police, at the time of his arrest, had shown his age to be 15 years and therefore, his case be separated and sent to Juvenile Justice Board for decision. On the same day, learned trial Court heard argument on the application and by order dated 13.11.2007 rejected the application for declaring the accused Monu @ Chhota @ Ashish as juvenile in conflict with law. 4. It is submitted by learned counsel for the revisionist that the learned trial Court did not provide any opportunity to the revisionist to produce evidence in support of his claim of juvenility and did not follow the procedure prescribed in Section 7-A of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act). It is further submitted that the trial Court was bound to make an enquiry and reasonable opportunity should have been given to the revisionist to lead evidence in support of his case. The accused could also be medically examined by a Medical Board and thereafter the trial Court could have formed an opinion regarding the age of the accused on the date of the crime. 5. Learned AGA and complainant fairly conceded that no enquiry was held by the trial Court under Section 7-A of the Act. The accused could also be medically examined by a Medical Board and thereafter the trial Court could have formed an opinion regarding the age of the accused on the date of the crime. 5. Learned AGA and complainant fairly conceded that no enquiry was held by the trial Court under Section 7-A of the Act. Section 7-A of the Act provides as under : “7-A. Procedure to be followed when claim of juvenility is raised before any Court.—(1) Whether 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 enquiry, 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 recognised 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.” 6. It is apparent from the aforesaid provision that whenever a claim of juvenility is raised before any Court, the Court is bound to make an enquiry and to take all such evidence as may be necessary so as to determine the age of the accused. In the instance case, no opportunity to lead evidence was afforded to the revisionist. Therefore, the impugned order cannot be sustained and is liable to be set aside. 7. The revision is allowed. The impugned order dated 13.11.2007 passed by the trial Court is set aside and the matter is remanded back to the Court below for decision afresh on the application moved by the revisionist on 5.11.2007. Therefore, the impugned order cannot be sustained and is liable to be set aside. 7. The revision is allowed. The impugned order dated 13.11.2007 passed by the trial Court is set aside and the matter is remanded back to the Court below for decision afresh on the application moved by the revisionist on 5.11.2007. The trial Court shall afford an opportunity to the revisionist to lead evidence in support of his claim regarding his juvenility and shall also provide similar opportunity to the prosecution and the complainant to rebut the same. The accused Monu shall also be referred to the Chief Medical Officer of the District for his opinion regarding the age of the accused. Thereafter the Court below, after hearing both the parties shall decide the application dated 5.11.2007. 8. It is submitted by the learned counsel for the complainant that the trial of other co-accused is being delayed on account of application of the revisionist as the delivery of judgment was stayed by order of this Court. The trial Court is free to separate the case of accused Monu from other accused and is also free to decide the case of other co-accused. 9. Interim order passed earlier is vacated. ————