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2014 DIGILAW 369 (PAT)

Amit Kumar @ Amit Kumar Mandal v. State of Bihar

2014-03-25

JYOTI SARAN

body2014
ORDER This Criminal Revision is directed against the order dated 26.02.2011 passed by the Additional District Judge, F.T.C.-I, Munger in Enquiry No. 1 of 2011 in Session Trial No. 258 of 2009 arising from Jamalpur P.S. Case No. 47 of 2009 registered for offence punishable under Sections 147, 148, 149, 324, 307, 302 of the Indian Penal Code and Section 27 of the Arms Act whereby the claim of juvenility of the petitioner has been rejected. 2. For adjudication of the matter in contest, it would be but appropriate to briefly sketch out the facts leading to the impugned order. 3. The petitioner is an accused in a case arising from Jamalpur P.S. Case No. 47 of 2009. As per the prosecution case when the brother of the informant alongwith his father proceeded towards Jamalpur Workshop on 20.05.2009 and reached near the house of one Sanjay Mandal, his co-villager, namely, Hriday Narayan, Nityanand Mandal and Naresh Sao were found standing there and on their command, the petitioner alongwith others named in the FIR surrounded the brother of the informant and whereafter the petitioner is alleged to have fired upon his brother which hit his stomach following which he died on the spot. One of the accused Sanjay Sao has also been charged with firing upon the father of the informant which hit him on the shoulder. 4. The petitioner is also an accused in a case arising from Jamalpur P.S. Case No. 124 of 2009 (G.R. No. 2084 of 2009) registered on 27.10.2009 and Jamalpur P.S. Case No. 129 of 2008 (S.T. No. 607 of 2009). 5. A plea of juvenility was raised by the petitioner in the case arising from G.R. No. 2084 of 2009 and the matter was referred to the Juvenile Justice Board, Munger who after conducting an enquiry as envisaged under the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ‘the Act’), declared the petitioner to be a juvenile on the date of occurrence in the said case i.e. 29.11.2009 vide order passed on 27.09.2010 (Annexure-2). The petitioner relying upon the said order dated 27.09.2010 passed by the Juvenile Justice Board, Munger filed an application before the trial court in Sessions Trial No. 607 of 2009 arising from Jamalpur P.S. Case No. 129 of 2008 for separation of his trial and for sending it back to the Juvenile Justice Board, Munger for enquiry and for proceeding in accordance with law and which prayer made in the petition dated 02.12.2010 was allowed by the Additional District and Sessions Judge, F.T.C.-III, Munger vide order passed on 11.01.2011 placed at Annexure-3 to the present application. 6. While the matter rested at that stage, a representation was filed by one Kanchan Kumari claiming to be widow of the deceased Arun Kumar Yadav, the brother of the informant before the Inspecting Judge of the Nalanda Judgeship questioning the separation of trial of the petitioner on the plea of juvenility relying upon the order passed by the Juvenile Justice Board in a different case arising from Jamalpur P.S. Case No. 124 of 2009 (G.R. No. 2084 of 2009). Record manifests that the representation filed by the said Kanchan Kumari was referred to the trial court in seisin of session trial no. 607 of 2009 arising from Jamalpur P.S. Case No. 129 of 2008 and Sessions Trial No. 258 of 2009 arising from Jamalpur P.S. Case No. 47 of 2009 for enquiry into the matter of juvenility of the petitioner. 7. Following the reference, the representation was registered as Enquiry No. 1 of 2011 by the trial court in seisin of Sessions Trial No. 258 of 2009 and the trial court on the basis of the rival pleadings, the evidence adduced by the parties, has found the petitioner to be a major on the date of occurrence i.e. 20.05.2009 and proceeded to reject the petition dated 2.12.2010 filed by the petitioner for separation of his trial on plea of juvenility. 8. The petitioner feeling aggrieved, is before this Court in revision. 9. Mr. Vikram Singh has appeared on behalf of the petitioner while the State is represented by the Additional Public Prosecutor. The only plea taken by Mr. Singh to question the order impugned is by placing reliance on Section 49(2) of the Act, and to submit that an order passed by the Juvenile Justice Board on the issue of juvenility is final and cannot be reopened subsequently. The only plea taken by Mr. Singh to question the order impugned is by placing reliance on Section 49(2) of the Act, and to submit that an order passed by the Juvenile Justice Board on the issue of juvenility is final and cannot be reopened subsequently. It is stated that in absence of any appropriate proceedings initiated for such determination or as envisaged under Section 52 of the Act conferring appellate powers on a court, the exercise of power is illegal. For his submissions, Mr. Singh has relied upon a judgment of this Court reported in 2006(2) PCCR 5 (Shankar Chaudhary & Anr. vs. State of Bihar & Anr.). 10. The prayer has been contested by the learned State counsel on the anvil that the power exercised is within the confines of Section 7(A) of the Act and requires no interference. 11. I have heard learned counsel for the parties and I have perused the materials on record. The issue propounded by Mr. Singh to contest the impugned order regarding reopening of an issue of juvenility by the trial court is itself misconceived inasmuch as in absence of any determination of juvenility insofar as the present case is concerned, there is no question of any reopening of the issue. The petitioner relying upon a determination of juvenility in a different case arising from Jamalpur P.S. Case No. 124 of 2009 (G.R. No. 2084 of 2009) by the Juvenile Justice Board, Munger placed at Annexure-2 would be completely misdirected to submit that the same can be a basis for determination of a juvenility in the present case and for separation of trial. It does not require reference to any judicial pronouncement to hold that a plea of juvenility has to be determined in each case separately and no order passed on this issue in any other case would have a binding effect although it may be of referential value. It does not require reference to any judicial pronouncement to hold that a plea of juvenility has to be determined in each case separately and no order passed on this issue in any other case would have a binding effect although it may be of referential value. Thus even if the juvenility of the petitioner was determined by the Juvenile Justice Board vide order passed on 27.09.2010 in a matter arising from Jamalpur P.S. Case No. 124 of 2009, that by itself could not have been the basis for separation of his trial either in the present case arising from Jamalpur P.S. Case No. 47 of 2009 (Session Trial No. 258 of 2009) or in Session Trial No. 607 of 2009 (arising from Jamalpur P.S. Case No. 129 of 2008). The order of separation passed by the trial court on 11.01.2011 in Session Trial No. 607 of 2009 relying upon the order passed in the matter arising from Jamalpur P.S. Case No. 124 of 2009, is not in accordance with the provisions of the act and the rules framed thereunder inasmuch as before an order of separation of trial is passed, there has to be a determination of juvenility in accordance with the procedure prescribed under the Act and the rules framed thereunder. 12. Once this part of the contest is set at rest it is but obvious that in the present matter, the issue of juvenility had to be enquired independently by the trial court and the representation/objection filed by the widow of the deceased before the Inspecting Judge was rightly referred to the trial court for passing appropriate orders thereon, under the supervisory jurisdiction exercised by the Inspecting Judge as also recognized by the Supreme Court in the judgment reported in (2006)8 SCC 294 (Jasbir Singh vs. State of Punjab). 13. Coming to the exercise of jurisdiction by the trial court, Section 7(A) of the Act confers all powers in a court in seisin of the matter to determine an issue of juvenility by holding enquiry in accordance with the provisions of the act and the rules framed thereunder. Thus the exercise by the trial court which has resulted in the impugned order is within the confines of the jurisdiction vested in a court under the provisions of the act and the rules framed thereunder and there is absolutely no error in the exercise of jurisdiction. Thus the exercise by the trial court which has resulted in the impugned order is within the confines of the jurisdiction vested in a court under the provisions of the act and the rules framed thereunder and there is absolutely no error in the exercise of jurisdiction. The objection raised by Mr. Singh relying upon the provisions of Section 49 and 52 of the Act would not be applicable to the present case for the simple reason that there is no determination of juvenility in the present case and a determination in a different case arising from Jamalpur P.S. Case No. 124 of 2009 cannot have a binding effect. Further the order impugned manifests that the petitioner has willingly participated in the enquiry and led his evidence to support his claim without raising any objection as to the exercise and thus having surrendered to the jurisdiction of the enquiry conducted by the trial court, Mr. Singh cannot raise any objection as to the exercise undertaken by the trial court for determining this issue. 14. Coming to the merits of the case, perusal of the order impugned manifests that whereas the petitioner relied upon a school leaving certificate to demonstrate that he was a juvenile on the date of occurrence i.e. 20.05.2009, the same was never proved and even the said certificate reflected that whereas the petitioner claimed first entry in the school on 10.1.2000, the date of leaving the school is mentioned as 31.12.2002 i.e. within two years of the entry and at that stage the petitioner was a student of class-6th. The doubtful nature of the certificate did not persuade the trial court to place any reliance thereon and even the summons issued to the Headmistress of the school, was neither responded by her nor any explanation was given therefor. Even the evidence of the cousin brother of the petitioner did not in any manner salvage the situation for the petitioner. 15. Even the evidence of the cousin brother of the petitioner did not in any manner salvage the situation for the petitioner. 15. In fact the sole basis for claiming juvenility by the petitioner was the enquiry made by the Juvenile Justice Board in connection with Jamalpur P.S. Case No. 124 of 2009 and the order dated 27.09.2010 passed thereon as well as the order dated 11.1.2011 passed in Sessions Trial No. 607 of 2009 and it is relying upon the said orders that it was sought to be canvassed that once a person has been declared a juvenile, the issue cannot be reopened. 16. The trial court considering the submissions advanced relied upon the following documents for forming its opinion: (a) Exhibit-2 is the judgment and order passed in Sessions Trial No. 344 of 2008 by the Additional Sessions Judge, F.T.C.-VII, Munger and in which the petitioner was acquitted of the charges. (b) Exhibit-3 is the Statement of the petitioner in a case arising from Sessions Case No. 344 of 2008 in which he admitted to be aged 24 years on 23.03.2009 and which was the same age as assessed by the Presiding Officer while recording his statement under Section 313 of the Code of Criminal Procedure. (c) Exhibit-6 is the voter list of Ward No. 33 of Jamalpur in which the name of the petitioner appears at serial no. 198 and shows him at 23 years in the year 2010. (d) Exhibit-9 is an undertaking of the petitioner attested by the Jailor, Mandal Kara, Munger which was forwarded in Sessions Trial No. 607 of 2009 arising from Jamalpur P.S. Case No. 124 of 2009 in which he has mentioned his age as 27 years on 03.11.2009. The undertaking was signed by the petitioner and identified by the Jailor. 17. (d) Exhibit-9 is an undertaking of the petitioner attested by the Jailor, Mandal Kara, Munger which was forwarded in Sessions Trial No. 607 of 2009 arising from Jamalpur P.S. Case No. 124 of 2009 in which he has mentioned his age as 27 years on 03.11.2009. The undertaking was signed by the petitioner and identified by the Jailor. 17. The court below placing reliance on Exhibit-2, 3, 6 and 9 which were documents of unimpeachable character and demonstrated that the petitioner was aged in and around 23-24 years on 23.03.2009 when the statement of the petitioner was recorded under Section 313 of the Code of Criminal Procedure in Sessions Trial No. 344 of 2008 and was aged 27 years when the undertaking was recorded in Sessions Trial No. 607 of 2009 on 3.11.2009 together with the voter list dated 1.1.2010 mentioning his age as 23 years, was pleased to hold the petitioner as a major on the date of occurrence i.e. 20.5.2009 in the case which was subject matter of Sessions Trial No. 258 of 2009 while holding the school leaving certificate as a forged and fabricated document in view of the surrounding circumstances. It is in consideration of these documents of unimpeachable character and there existing no reason for seeking opinion of the medical board that the plea of the petitioner was rejected and which order is fully supported by the legal provisions. This Court not finding any legal infirmity either in exercise of powers by the court below or the conclusion drawn by it on the basis of the materials on record, is not persuaded to interfere with the same. 18. For the reasons aforementioned, this Criminal Revision is dismissed.