Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 368 (PAT)

Ajay Kumar Das @ Jay Kumar Das v. State of Bihar

2014-03-25

RAKESH KUMAR

body2014
ORDER Heard Sri Gopal Jha, learned counsel for the petitioner, Dr. M.K. Gautam, learned Addl. Public Prosecutor as well as Sri Gagandeo Yadav, learned counsel who has appeared on behalf of informant/opp. party no. 2. 2. The petitioner, invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”), has prayed for quashing of an order dated 13-12-2010 passed in Sessions Trial No. 43 of 2004 (arising out of Bisfi P.S. Case No. 65 of 2003) by the Additional Sessions Judge, F.T.C.-III, Madhubani (hereinafter referred to as “Addl. Sessions Judge”). By the said order, claim of juvenility, raised by the petitioner, was rejected. 3. Short fact of the case is that initially, the informant had filed a complaint, vide Complaint Case No. 504 of 2003 in the court of learned Chief Judicial Magistrate, Madhubani for offence under Sections 366, 360 & 376 of the Indian Penal Code, alleging therein that his minor daughter aged about 14 years had eloped with the petitioner. The said complaint was referred to the police under Section 156(3) of the Cr.P.C. and as such, an F.I.R., vide Bisfi P.S. Case No. 65 of 2003, was registered under Section 366A/34 of the Indian Penal Code. 4. Learned counsel for the petitioner submits that during investigation, the petitioner was arrested and he was remanded to judicial custody by order dated 02-06-2003. It has further been submitted that the petitioner filed a bail petition before the learned Chief Judicial Magistrate, Madhubani and in the bail petition, a categorical statement was made that the petitioner was aged about 13 ½ years. He further submits that due to inadvertence, the plea of juvenility could not be raised before the court below at earlier stage. However, subsequently, after prosecution evidence was closed, a petition was filed claiming juvenility. It was asserted that at the time of occurrence, which had allegedly occurred in the year 2003, the petitioner was juvenile. Alongwith the petition, the petitioner had enclosed a certificate, kept as Annexure ‘2’, issued by the Head Master of Vidyapati High School, Bisfi (Madhubani) to show that the date-of-birth of the petitioner as 05-12-1989. Meaning thereby, that at the time of occurrence, the petitioner was aged about 14 years. He submits that the learned Addl. Alongwith the petition, the petitioner had enclosed a certificate, kept as Annexure ‘2’, issued by the Head Master of Vidyapati High School, Bisfi (Madhubani) to show that the date-of-birth of the petitioner as 05-12-1989. Meaning thereby, that at the time of occurrence, the petitioner was aged about 14 years. He submits that the learned Addl. Sessions Judge, without conducting any proper enquiry, in a mechanical manner, has rejected the petition filed by the petitioner only on the objection raised by the prosecutor that such petition was filed only with a view to delay conclusion of the trial and that was filed at much belated stage. Learned counsel for the petitioner further submits that plea of juvenility can be raised at any stage. In support of his argument, he has relied on a judgment of the Apex Court, reported in 2009 (3) PLJR (SC) 123 [Hari Ram –Versus- State of Rajasthan & Anr.]. On aforesaid ground, it has been prayed to set aside the impugned order. 5. Learned Addl. Public Prosecutor as well as Sri Gagandeo Yadav, learned counsel for complainant/opp. party no. 2 have opposed the prayer of the petitioner. It was submitted by Sri Yadav, learned counsel for opp. party no. 2 that even the learned Addl. Sessions Judge has assessed the age of the petitioner at the time of rejection of his petition on 13-12-2010 as not below the age of 24 years. He further submits that the petition was only filed at the fag end for delaying the conclusion of the trial, which was going to be concluded shortly. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Fact remains that as per Section 7-A of the Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter referred to as “J.J. Act”), claim of juvenility can be raised at any stage. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Fact remains that as per Section 7-A of the Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter referred to as “J.J. Act”), claim of juvenility can be raised at any stage. It would be appropriate to quote Section 7-A of the J.J. Act, which is 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.” 7. It is further evident that if such claim is raised, same is required to be enquired properly, as provided under the Juvenile Justice (Care & Protection of Children) Rules, 2007 (hereinafter referred to as “J.J. Rules”). Rule 12 of J.J. Rules prescribes the procedure to be followed in determining the age. Rule 12 of J.J. Rules is quoted here-in-below:- “12. Procedure to be followed in determination of age. Rule 12 of J.J. Rules prescribes the procedure to be followed in determining the age. Rule 12 of J.J. Rules is quoted here-in-below:- “12. Procedure to be followed in determination of age. – (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, And, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7-A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 8. Once a petition is filed, claiming juvenility before the trial court, it was mandatorily required on the part of the court below to conduct proper enquiry as statutorily prescribed. On perusal of the impugned order, it appears that learned Addl. Once a petition is filed, claiming juvenility before the trial court, it was mandatorily required on the part of the court below to conduct proper enquiry as statutorily prescribed. On perusal of the impugned order, it appears that learned Addl. Sessions Judge had proceeded on the basis of submission of learned Public Prosecutor that such petition was filed at fag end with a view to delay conclusion of the trial. Moreover, learned Addl. Sessions Judge had also assessed the age on 13-12-2010, as not below 24 years. In this case, alleged occurrence had taken place in the year 2003. If for the time being, the assessment made by the learned court below is treated as correct, even in that event also, the petitioner was below 18 years on the date of occurrence. Moreover, the petitioner claiming his juvenility had produced the certificate issued by the Head Master of the said school. If the learned Addl. Sessions Judge was not satisfied with the certificate produced by the petitioner, the learned court below was required to conduct proper enquiry and in that event, the petitioner was required to be examined by the Medical Board, as prescribed under Rule 12(3)(b) of J.J. Rules. Nothing has been done by the learned court below. So far as the claim of juvenility is concerned, besides judgment of the Apex Court (supra), Section 7-A of the J.J. Act itself makes it clear that it can be raised at any stage. In the present case, trial had not at all concluded. 9. In view of the facts and circumstances, particularly; the fact that learned Addl. Sessions Judge has failed to appreciate the petition in its right perspective, the order impugned is required to be interfered with. 10. Accordingly, order dated 13-12-2010 passed in Sessions Trial No. 43 of 2004 (arising out of Bisfi P.S. Case No. 65 of 2003) by the Additional Sessions Judge, F.T.C.-III, Madhubani is, hereby, set aside and the matter is remitted back to the learned court below with a direction to examine the claim of juvenility of the petitioner in its right perspective in accordance with law as per provisions contained in the Juvenile Justice (Care & Protection of Children) Rules, 2007 and in the Juvenile Justice (Care & Protection of Children) Act, 2000. 11. With above observation and direction, the petition stands allowed.