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2017 DIGILAW 1179 (JHR)

Sushil Kumar v. State Of Jharkhand

2017-07-17

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Heard the parties. 2. Since common question of law and facts are involved in these applications, the same are being disposed of by this common order. 3. In Cr. Revision No. 838 of 2017, the petitioner is aggrieved by the order dated 20.05.2017 passed by the learned 2nd Addl Sessions Judge, Latehar, in Sessions Trial No. 09 of 2014 whereby and where-under learned court below had refused to declare the petitioner as a juvenile. 4. In Cr. Revision No. 841 of 2017, the petitioner is aggrieved by the order dated 20.05.2017 passed by the learned 2nd Addl Sessions Judge, Latehar, in Sessions Trial No. 04 of 2014, where-under also, the prayer of the petitioner for declaring him as a juvenile had been rejected. 5. It has been stated by learned counsel for the petitioner that the petitioner had been declared a juvenile in three other cases on the basis of the documents produced by the petitioner including transfer certificate and admission register but the learned trial court has given a complete go by to the orders passed in those cases, while refusing to declare the petitioner as a juvenile. Learned counsel for the petitioner submits that the impugned orders passed in both the cases, therefore, deserve to be set aside. 6. Learned Addl. Public Prosecutors have opposed the prayer made by the learned counsel for the petitioner in respective cases. 7. It appears that earlier the petitioner had filed Cr. Revision No. 1565 of 2016 and Cr. Revision No. 1560 of 2016, challenging the order passed by the learned trial court, refusing to declare the petitioner as a juvenile and after the said applications were allowed, the matters were remanded back to the learned trial court to pass a fresh order in accordance with law. After considering the fact that in earlier cases, the petitioner has been declared as a juvenile, the impugned orders dated 20.05.2017, in respective cases, have been passed, which is under challenge. While disposing of the petition of the petitioner, who claims himself to be a juvenile, the learned trial court has taken into consideration the order passed in a separate case by the learned Chief Judicial Magistrate, wherein the petitioner was declared as a juvenile. While disposing of the petition of the petitioner, who claims himself to be a juvenile, the learned trial court has taken into consideration the order passed in a separate case by the learned Chief Judicial Magistrate, wherein the petitioner was declared as a juvenile. The order of the learned Chief Judicial Magistrate, which has been quoted in the impugned order, reveals that the consideration was made on the oral evidence as well as transfer certificate and admission register, which made the learned Magistrate come to a conclusion that the date of birth of the petitioner is 10.03.1995 and, therefore, on the date of incident, the petitioner was a minor. Learned trial court has distinguished the order passed by the learned Chief Judicial Magistrate, by stating that the learned Magistrate, had never insisted upon the birth certificate from the school first attended by the petitioner, but has relied upon certain documents, the veracity of which , itself could be doubted. Learned trial court was justified in not agreeing with the order passed by the learned Chief Judicial Magistrate as the grounds, which have been taken by the learned Chief Judicial Magistrate in declaring the petitioner as a juvenile are the grounds which are not germane for consideration of the juvenility of the petitioner. The admission register and the transfer certificate as well as evidence of witnesses Nos. 1 and 2, had led the learned Magistrate to declare the petitioner as juvenile. The provision of the Act and the judicial pronouncements have not at all been considered by the learned Magistrate and it cannot be deciphered as to whether the petitioner was asked to produce the birth certificate or any proof from the school, he first attended and merely on the basis of the transfer certificate and admission register, the prayer of the petitioner has been allowed. The order of the learned Magistrate also does not disclose as to whether the admission register was of the school, which was first attended by the petitioner. The order of the learned Magistrate also does not disclose as to whether the admission register was of the school, which was first attended by the petitioner. However, since, the order passed by the learned Magistrate in three cases, in which the petitioner had declared as juvenile, has not been challenged, the same continues to hold the field but on the same breathe, it can be said that merely because the petitioner was declared as a juvenile on wrong notion of law being applied by learned Magistrate, the same cannot tilt the balance in his favour. 8. In the case of Ashwani Kumar Saxena reported in 2012 (9) SCC 750 , the requirements for consideration of juvenility of an accused has been enumerated, which reads as follows:- Paragraph-32 "Consequently,the procedure to be followed under the J.J. Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under section 7A of the Act. Many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the Penal laws forgetting the fact that the specific procedure has been laid down in section 7A read with Rule 12." 9. The learned trial court had correctly applied the law by disagreeing with the view of the learned Magistrate and since, the petitioner had not produced any concrete proof of his age, the prayer of the petitioner was rejected. However, the learned trial court has not opted for medical opinion from a duly constituted Medical Board and has merely rejected the application on consideration of the order passed by learned Chief Judicial Magistrate, on remand by this Court. 10. In the case of Ashwani Kumar Saxena (supra), it was categorically held that the question of obtaining medical opinion from a duly constituted Medical Board arises, when the documents which necessitated declaring a person to be a juvenile is unavailable. 10. In the case of Ashwani Kumar Saxena (supra), it was categorically held that the question of obtaining medical opinion from a duly constituted Medical Board arises, when the documents which necessitated declaring a person to be a juvenile is unavailable. Such avenue has not been explored by the learned trial court, while rejecting the application preferred by the petitioner. 11. As a consequence to the discussion made here-in-above, these applications are allowed and the impugned order dated 20.05.2017 passed by learned 2nd Addl. Sessions Judge, Latehear, in Barwadih P.S. Case No. 02 of 2013 and also impugned order dated 20.05.2017 passed in Barwadih P.S. Case No. 01 of 2013, are hereby set aside and these matters are once again remanded back to the learned trial court to pass a fresh order, in accordance with law, only with respect to what has been indicated above.