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2011 DIGILAW 2012 (PAT)

Ajay Pandey v. State of Bihar

2011-09-19

MANDHATA SINGH

body2011
ORDER Heard learned counsel for the parties. 2. This is an application for quashing the order dated 2.2.2008 passed by Sri Balram Singh, Additional Sessions Judge, F.T.C. II, Buxar in S.Tr.no. 239/01 whereby he has rejected petitioner’s petition dated 15.12.2007 that he was juvenile on the date of occurrence. 3. Incident of the case took place on 18.8.1994. The case committed for Session trial and was pending in the court of Additional Sessions Judge, F.T.C. II, Buxar. On 15.12.2007 a petition was filed on behalf of petitioner to declare him juvenile after introduction of an amended section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter to be referred to as ‘the Juvenile Justice Act’) making it effective from 22.8.2006. Petitioner’s prayer has been refused on technical ground that his case was not covering under the provision of section 7A of Juvenile Justice Act which runs 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 by: 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 creased 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. (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. Learned counsel for the petitioner submits that paragraph 2 of sub-section 1 of section 7A of the Juvenile Justice Act is clear that claim of juvenility may be raised before any Court and it shall be recognized at any stage even after final disposal of the case. As such, claim shall be determined in terms of the provision contained in this Act and the rules made thereunder even if the juvenile is ceased to be so on or before the date of commencement of this Act. That view is supported by the Supreme Court in Civil Appeal No. 907 of 2009 arising out of SLP(Cri) No. 3336 of 2006 (Hari Ram Vs. State of Rajasthan & Anr.) reported in 2009(3) PLJR (SC)123. I am also of the view that all persons who were below 18 years of age on the date of commission of offence even prior to 1.4.2001 would be treated as juveniles, even if claim of juvenility was raised after they have attained the age of 18 years on or before the date of commencement of the Act and even were undergoing sentence upon being convicted. 5. In the instant case, claim of juvenility is made only on commencement of the trial, witnesses were being examined in the case. It is further made clear that effect of said section is retrospective in nature. So, it is held that the trial court has committed error in refusing petitioner’s prayer to declare him juvenile. 6. Accordingly, the quashing application is allowed, order dated 15.12.2007 passed by Additional Sessions Judge, F.T.C. II, Buxar in S.T.No. 239 of 2001 is set aside. The Additional Sessions Judge, F.T.C. II, Buxar is directed to re-consider the petition filed by petitioner in accordance with the provisions of Juvenile Justice Act.