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2010 DIGILAW 3532 (ALL)

Subhash Chandra Yadav v. State of U. P.

2010-11-19

S.C.AGARWAL

body2010
Hon. S. C.Agarwal, J 1. This revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the ''Act') is directed against the order dated 10th March, 2010 passed by Sessions Judge, Etah in S.T. No. 985 of 2008, under Sections 498A, 304B IPC and ¾ D.P. Act, P.S. Shakrauli, Etah, whereby the application filed by opposite party no. 2- Sanjeev Kumar (accused) under Section 7A of the Act for declaring him to be a juvenile in conflict with law was allowed. Heard Sri Santosh Shukla, learned counsel for the revisionist- complainant, learned AGA for the State and Sri A.R. Gupta, learned counsel for opposite party no. 2. Counter and rejoinder affidavits have been exchanged between the parties. 2. The facts are that opposite party no. 2 is an accused in the aforesaid criminal trial. He is alleged to have committed dowry death of his wife. During trial, an application was moved before learned Sessions Judge on behalf of opposite party no. 2 for decalaring himself to be a juvenile on the ground that in the High School Mark-sheet for the year 2007, his date of birth was recorded as 10th March, 1992. Learned Sessions Judge referred the application to C.J.M., Etah for ascertaining facts and submitting report on the point of juvenility of the accused. Objections in the form of affidavit was filed by the revisionist-complainant before C.J.M. Etah stating therein that date of birth of his daughter Suman was 2.5.1988. Suman was married with Sanjeev Kumar on 6.12.2006. Before the marriage, father of Sanjeev Kumar had provided horoscope of Sanjeev kumar to him whrein his date of birth was recorded as 13.4.1988. The date of birth recorded in the School Certificate is wrong. Before the marriage, one Promod Kumar @ Pappu Pandit on behalf of the complainant whereas Amit Upadhyay, Mahesh Chandra (teacher) and Satyapal (teacher) were examined on behalf of the accused. On the basis of oral as well as documentary evidence and considering the provisions of Rule 22 of the Juvenile Justice (Care and Protection of Children) Rules, 2004, learned C.J.M. submitted a report to the District Judge that the date of birth of accused Sanjeev Kumar was 10.3.1992 and on the date of incident i.e. 3/4-7-2008 he was juvenile. 3. On the basis of oral as well as documentary evidence and considering the provisions of Rule 22 of the Juvenile Justice (Care and Protection of Children) Rules, 2004, learned C.J.M. submitted a report to the District Judge that the date of birth of accused Sanjeev Kumar was 10.3.1992 and on the date of incident i.e. 3/4-7-2008 he was juvenile. 3. Learned Sessions Judge, by impugned order, considered the reports submitted by C.J.M. Etah, heard learned counsel for the parties and agreed with the report submitted by the Magistrate and declared the opposite party no. 2 to be a juvenile. 4. Learned counsel for the revisionist submitted that learned C.J.M. did not consider the evidence produced by the revisionist and decided the question of juvenility on the ground of School Certificate only whereas as per the horoscope submitted by father of the accused at the time of marriage, Sanjeev Kumar was not a juvenile at the time of marriage. If the date of birth recorded in the School Certificate is accepted as correct, the age of opposite party no. 2 at the time of marriage come to about 15 years which is not possible. It is further submitted that as per the provisions of section 7A of the Act, learned Sessions Judge was bound to hold an enquiry himself and could not have referred the matter to C.J.M. for enquiry. It is further submitted that learned Sessions Judge has observed that learned C.J.M. has considered the affidavit filed by the complainant whereas in an enquiry under Section 7A of the Act, affidavits filed by the parties cannot be considered. 5. Learned counsel for opposite party no. 2 submits that as per the High School Mark-sheet, the date of birth of opposite party no. 2 is 10.3.1992 and therefore in accordance with provisions of Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the revisionist was a juvenile on the date of offence and the order passed by the learned Sessions Judge does not require any interference. 2 is 10.3.1992 and therefore in accordance with provisions of Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the revisionist was a juvenile on the date of offence and the order passed by the learned Sessions Judge does not require any interference. 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 section 7A of the Act that when a claim of juvenility is raised before the Court, 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. It is obvious from the aforesaid provision that the enquiry has to be conducted by the Court before whom the case is pending and before whom an application under Section 7A of the Act has been filed. In the instance case, the trial was pending before learned Sessions Judge. On an application moved by the accused under Section 7A of the Act, it was the duty of the Sessions Judge to hold an enquiry himself. In the instance case, the trial was pending before learned Sessions Judge. On an application moved by the accused under Section 7A of the Act, it was the duty of the Sessions Judge to hold an enquiry himself. There is no provision in the act to authorise the learned Sessions Judge to entrust the fact finding enquiry to the Chief Judicial Magistrate. The enquiry had to be held by learned Sessions Judge. The witnesses had to be recorded by him and thereafter he could have given a finding as to whether the accused Sanjeev Kumar was a juvenile or not on the date of offence. It is also clear that the evidence in an enquiry under Section 7A of the Act cannot be adduced through affidavits. In these circumstances, I find that the impugned order cannot be sustained and is liable to be set aside. 7. The revision is allowed. Impugned order dated 10th March, 2010 is set aside and the matter is remanded to the learned Sessions Judge with the direction to hold an enquiry and under Section 7A of the Act after providing an opportunity to the accused. The State as well as the complainant to lead evidence before him on the point of date of birth of the revisionist. If required, the accused shall also be subjected to medical examination by a duly constituted Medical Board for the purpose of ascertaining his age. Evidence on affidavits shall not be permitted to any party. Thereafter learned Sessions Judge shall record a finding regarding the date of birth of the accused Sanjeev Kumar and shall also record finding as to whether he was a juvenile or not on the date of the offence.