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Allahabad High Court · body

2017 DIGILAW 420 (ALL)

ANAND SWAROOP DWIVEDI v. STATE OF U. P.

2017-02-06

RAJUL BHARGAVA

body2017
JUDGMENT : Rajul Bhargava, J. 1. Heard Sri Imran Khan holding brief of Sri Manish Tiwary, learned counsel for the revisionist, Sri D.P. Singh, learned senior counsel assisted by P.K. Dube, learned counsel for opposite party no. 2 and learned AGA for the State. 2. The present revision is directed against the judgment and order dated 2.6.2000 passed by District and Sessions Judge, Auraiya in Criminal Appeal No. 01 of 2000 whereby the he has dismissed the appeal filed by the revisionist and upheld the judgment and order dated 24.5.2000 passed by Principal Magistrate, Juvenile Court/C.J.M. Auriaya in Case Crime No. 03/2000 u/s 302, 324 IPC, P.S. Auraiya, District Auraiya, whereby he has declared the opposite party no. 2 Pankaj Agnihotri to be juvenile in conflict with law and ordered that his case be separated from that of the other co-accused and be tried by the Juvenile court. 3. The relevant facts in brief, for deciding the present revision are that the opposite party no. 2 was nominated as an accused u/s 302, 324 IPC in the First Information Report lodged by the revisionist regarding an incident, which is said to have taken place on 6/7.01.2000 at 1.15 AM. After investigation the applicant and other co-accused were charge-sheeted and put to trial. It transpires that opposite party no. 2 made a claim of juvenility before the Juvenile court stating therein that his date of birth as per the school records and other documents is 04.11.1984, therefore, he was less than 16 years of age on the date of incident and thus benefit of Juvenile Justice Act be given and he may be declared as juvenile. 4. Against the said application the informant filed objection along with an affidavit stating that age of the accused (opposite party no. 2) infact is 04.11.1983 and in this behalf he submitted several documents of educational institution before the court. It was submitted that since the accused (opposite party no. 2) was more than 16 years of age the benefit of Juvenile Justice Act, 1986 cannot be extended to him and the application is liable to be rejected. 5. In this behalf an inquiry was held u/s 32 of the Juvenile Justice Act, 1986 and evidence was led by both sides. The medical examination of opposite party no. 2 was also conducted. 5. In this behalf an inquiry was held u/s 32 of the Juvenile Justice Act, 1986 and evidence was led by both sides. The medical examination of opposite party no. 2 was also conducted. According to the medical report, his age was determined to be about 16 years. The Juvenile court arrived at a finding that since documentary evidence produced by both sides was not found convincing, therefore, he relied on medical reports wherein the age of the opposite party no. 2 was estimated to be 16 years and giving benefit of two years either way to the accused held that opposite party no. 2 was less than 16 years of age on the date of incident. 6. Aggrieved by this order the revisionist preferred an appeal u/s 37 of the Juvenile Justice Act, 1986 in the court of Session Judge, Auriya. The appellate court upheld the finding recorded by the Juvenile Magistrate and dismissed the appeal vide order dated 2.6.2000. 7. I have perused the impugned order passed by the courts below. The position as emerges from the perusal of the record, evidence led by parties and submission of both parties is that according to the case of the opposite party no. 2, his date of birth is 04.11.1984 whereas admittedly according to informant (revisionist) his date of birth is 04.11.1983. 8. Learned counsel for the revisionist has fairly and candidly submitted that at present he is not challenging the legality, propriety and correctness of the impugned order passed by the Courts below in view of section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Section 20 of the Act, 2000 is special provision in respect of pending cases. For the purposes of deciding the present revision the explanation of section 20 is quoted as under:- Explanation: In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed. 9. 9. By virtue of explanation of section 20, in all pending cases it would include not only trials but even subsequent proceedings by way of revision or appeal etc., the determination of juvenility of juvenile has to be in terms of Clause (1) of section 2 even if the juvenile ceased if a juvenile on or before 01.04.2001 when the Act of 2000 came into force and the provision of Act would apply as if the said provision has been enforced for all purposes and all material times when the alleged offence was committed. 10. It is relevant to note that as per the Juvenile Justice Act, 1986, juvenile means a person, who has not completed 16 years of age in the case of boy. However, according to section 2(K) of the Juvenile Justice (Care and Protection of Children) Act, 2000 juvenile means a person, who has not completed 18 years of age. Section 2(L) of the said Act defines “juvenile in conflict with law” means a juvenile, who has alleged to commit offence and has not completed 18 years of age as on the date of commission of offence. 11. In view of the discussion made herein above, the alleged date of incident as per the prosecution is 07.01.2000 and taking into consideration the admitted position as stated by the revisionist regarding which, he has led evidence before the Juvenile Magistrate that the date of birth of opposite party no. 2 is 04.11.1983 and by this undisputed date of birth the opposite party no. 2, was less than 18 years of age on the date of the commission of offence. Thus, in view of beneficial provision of section 20 of the Juvenile Justice Act, 2000, without entering into the legality, propriety and correctness of the impugned orders, I am left with no other option but to declare the opposite party no. 2 a juvenile in conflict with law. 12. In view of the aforesaid discussion, the opposite party no. 2 Pankaj Agnihotri is declared juvenile in view of the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 and thus it is directed that opposite party no. 2 be treated as a juvenile in conflict with law by the Juvenile court and proceed against him in accordance with law. The opposite party no. 2 Pankaj Agnihotri is declared juvenile in view of the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 and thus it is directed that opposite party no. 2 be treated as a juvenile in conflict with law by the Juvenile court and proceed against him in accordance with law. The opposite party no. 2 is directed to appear before the Juvenile court to face the trial in Crime No. 03/2000 u/s 302, 324 IPC, P.S. Auraiya, District Auraiya. With the aforesaid observations, the present revision is disposed of. ——————