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2017 DIGILAW 54 (JK)

Bibi v. State of J&K

2017-02-06

ALOK ARADHE

body2017
JUDGMENT : ALOK ARADHE, J. 1. With the consent of the parties, matter is taken up on board. In this writ petition under Section 561-A of the Code of Criminal Procedure read with Section 435 of the Code of Criminal Procedure, the petitioner seeks quashment of order dated 04-05-2016 passed by the trial Court. Facts giving rise to filing of the petition briefly stated are that the petitioner is wife of late Abdul Rashid, who was allegedly murdered by respondents-3 and 4. Pursuant to the aforesaid incident, the First Information Report, namely, FIR No. 56/2015, dated 06-07-2015 was registered under Sections 302/307/147/148/149/429 RPC, in Police Station, Kud, Tehsil Chenani, District Udhampur and thereafter charge sheet was presented before the Chief Judicial Magistrate, Udhampur on 11-10-2015. During the course of trial, respondents-3 and 4 moved an application on the ground that they are juvenile. The trial Court on the basis of birth certificates issued by SHO, Police Station, Miran Sahib, passed an order dated 04-05-2016, by which the application preferred by respondents-3 and 4 was allowed. They were declared as juvenile. 2. It is not in dispute that the application preferred by the petitioner has been decided under the provisions of Jammu and Kashmir Juvenile Justice Act, 1997 which has already been repealed by The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 (hereinafter for short the Act, 2013). 3. Learned counsel for the petitioner submitted that the impugned order has been passed in flagrant violation of the provisions of the Act, 2013 and the rules framed thereunder. It is further submitted that no opportunity of hearing was afforded to the petitioner before passing the impugned order. 4. Learned counsel for the respondents have not disputed the fact that the impugned order has been passed under the provisions of the Jammu and Kashmir Juvenile Justice Act, 1997, which has already been repealed by The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013. It is further submitted by learned counsel for respondents-3 and 4 that respondents-3 and 4 had filed an application before the Magistrate and the factum of juvenility has already been ascertained by the Magistrate. It is further submitted that the order has been passed on the basis of certificates issued by the SHO and, therefore, no interference with the impugned order is called for. 5. It is further submitted that the order has been passed on the basis of certificates issued by the SHO and, therefore, no interference with the impugned order is called for. 5. I have considered the submissions made by the learned counsel for the parties and perused the record. In exercise of powers under Section 68 of the Act, 2013, the Rules have been framed by the State Government which are known as the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014 (hereinafter for short the Rules, 2014). The relevant extract of Rule 74(3) which deals with Determination of Age of juvenile and Rule 75 which deals with Declaration of age by the Court or Board or the Committee, reads as under: "74. Determination of Age xx xx xx xx xx xx x xx xx xx xx xx xx x (3) The Board or the Committee, as the case may be, shall, as far as possible, decide the juvenility or otherwise, on the basis of physical appearance or documents available, if any. Where an inquiry is instituted by Board or the Committee for determination of age, such inquiry shall be conducted on the basis of following evidence:- (i) the birth certificate issued by a Corporation or a Municipal Committee or any other notified authority; or (ii) the matriculation or equivalent certificate, (iii) in absence of the certificates mentioned in Sub-clauses (i) and (ii) or in case of any contradiction arising there from, the authority deciding the age issue may refer the matter to a duly constituted Medical Board, which shall record its findings and submit to the Juvenile Justice Board." "75. Declaration of age by the Court or Board or the Committee (1) The Court or the Board or the Committee, as the case may be, shall declare the age after examining the witnesses on age and by affording opportunity of cross examination to the State/Complainant and the Juvenile. (2) For the purposes of Sub-rule (1), the witnesses may include School Principals or their representative, parents, Registrars of Education Boards, Municipal Corporation or Panchayat representative, Chairperson and Members of the Medical Board etc. (2) For the purposes of Sub-rule (1), the witnesses may include School Principals or their representative, parents, Registrars of Education Boards, Municipal Corporation or Panchayat representative, Chairperson and Members of the Medical Board etc. (3) In case exact assessment of the age cannot be done, the Court or the Board or the Committee, as the case may be, 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. (4) The decision of the Board or the Committee as the case may be, shall be the conclusive proof of the age as regards a child or a juvenile in conflict with law. (5) The Board or the Committee, as the case may be, shall provide a copy of the order declaring age to the concerned juvenile or child or his parents/guardian." Mere perusal of Rule 74(3) and Rule 75 in conjunction, it is evident that the procedural requirement laid down in Rules 74 and 75 of the Rules, 2014 has not been followed in the instant case inasmuch as that the age of the respondents-3 and 4 has been determined in violation of the procedure laid down in the Rules 74 and 75 of the Rules, 2014 inasmuch as no inquiry as contemplated in terms of Rules 74(3) of the Rules, 2014 has been held and the provisions of Rule 75(1) and the other provisions of the Rules, 2014 have not been followed, as the complainant, namely the petitioner has not been given the opportunity of cross-examination. The impugned order, therefore, cannot be sustained in the eye of law. It is accordingly quashed. The trial Court is directed to decide the application preferred by respon-dents-3 and 4 bearing in mind the mandate contained in Rules 74 and 75 of the Rules, 2014 and in accordance with law. Let the aforesaid application be decided within a period of six weeks from today by a speaking order. Accordingly, the petition is disposed of.