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2019 DIGILAW 1771 (ALL)

Sanjeev v. State Of U. P.

2019-07-24

DINESH KUMAR SINGH

body2019
JUDGMENT : Dinesh Kumar Singh, J. 1. Heard Sri Ajay Kumar, learned counsel for the revisionist and Sri Arun Kumar Singh, learned A.G.A. for the State are present. 2. This criminal revision has been preferred against judgment and order dated 23/4/1998 passed by the Special Judge EC Act, Mainpuri whereby application number 86 - A of the revisionist Sanjeev Kumar involved in crime no. 399 of 89 for the offences under sections 147, 148, 149, 307 and 302 IPC and also in crime no. 400 of 1989 for the offence under section 25 of Arms Act relating to PS Kotwali, Mainpuri seeking transmission of the case to juvenile court, has been rejected. 3. The grounds set up in the revision are that at the time of the alleged occurrence i.e. on 15/07/1989 the revisionist was minor, therefore the Special Judge EC Act was not competent to decide this fact as to whether the revisionist was a juvenile or not under sections 7 (2) of the Juvenile Justice Act. The learned Special Judge EC Act was not competent to hold an enquiry into the question as to whether the accused was juvenile or not on the date of occurrence. The revisionist had raised preliminary objection through his counsel before the Special Judge but the same was rejected. Even if it be taken that the Special Judge had power to decide the juvinility, the revisionist was not given any opportunity to produce the evidence in support of his claim, hence the impugned order was arbitrary illegal and against the provisions of law. The revisionist was ready to produce all evidence in support of his claim that he was a juvenile at the time of alleged occurrence. It is further stated in the grounds that even the prosecution had failed to adduce any relevant documents about the date of birth of the revisionist, hence the impugned judgment and order dated 23/04/1998 deserved to be set aside. 4. It would be pertinent to see as to whether the revisionist had extended evidence before the trial court in support of his claim or not and what was the basis of reaching the said conclusion that the revisionist was not juvenile on the date of occurrence. 5. 4. It would be pertinent to see as to whether the revisionist had extended evidence before the trial court in support of his claim or not and what was the basis of reaching the said conclusion that the revisionist was not juvenile on the date of occurrence. 5. It is recorded in the impugned order that on the application 86 - A, of the defence, it was ordered that the applicant would appear in person and produce evidence on 15/04/1998, but no evidence was led from his side, although the revisionist accused appeared before the trial court in person on 22/04/1998. It is further recorded in the impugned judgment that the prosecution had countered the claim of the defence by filing a certificate of Principal of Christian Inter-College, Mainpuri which showed the date of birth of accused to be 02/07/1973, while the incident had taken place on 15/07/1989 which meant that the revisionist was of 16 years of age at the time of incident. 6. It is mentioned in the impugned judgment that from the side of defence reliance was placed upon Makrand vs State of U.P.,1996 32 AllCriC 353 in which Allahabad High Court held that if the accused claimed himself to be a juvenile on the date of incident then he should be tried by a Juvenile Court, the Additional Sessions Judge would not be empowered under section 7 (2) of Juvenile Justice Act, 1986 to hold enquiry into the question as to whether the accused was a juvenile on the date of incident. The reliance was also placed by the defence on Kamalesh Kumar vs State of U.P.,1994 AICC 650 wherein it was held that Section 8 of the Juvenile Justice Act confers powers only on the Special Magistrate and not on the Sessions Judge, therefore in the present case the Special Judge did not have power to decide the juvenility of the revisionist. 7. It is further mentioned in the impugned judgment that the Learned ADGC (Criminal) repelled the said argument of the defence and submitted that accused was not a juvenile at the time of incident as he was above 16 years of age. 7. It is further mentioned in the impugned judgment that the Learned ADGC (Criminal) repelled the said argument of the defence and submitted that accused was not a juvenile at the time of incident as he was above 16 years of age. It was further submitted that the said court had jurisdiction to determine the said question and placed reliance upon the law laid down in Om Prakash Sharma vs State of U.P., 1997 ACC 581 , wherein the Allahabad High Court has held that Section 7 (3) of the Juvenile Justice Act, 1986 confers powers on the Board or Juvenile Court, which may also be exercised by the High Court or the Court of Sessions as well to determine whether a person was juvenile or not even if such question was not brought before it. 8. It was further argued before the trial court from the side of the Learned ADGC (criminal) that the said point was not raised by the accused at the time of framing of charge, which was framed on 02/04/1992, therefore the accused was estopped from raising the same in support of that contention, reliance is placed upon Shakoor and another vs State,1998 ACC 409, in which High Court held that the plea of accused being juvenile at the time of incident was raised at the time of arguments in appeal, the said plea was neither raised at the time of committal proceedings nor at the time of framing of charge, hence a presumption of accused being major was raised. 9. The trial court has held that in the case of Om Prakash Sharma vs State of U.P. (supra) the Allahabad High Court clearly observed that if the question of determination as to whether a person is juvenile or not is brought before the court of Sessions otherwise than in appeal, revision etc., in that case the Sessions Judge has power of the Board or Juvenile Court constituted under the said Act. The case law relied upon by the Learned ADGC (criminal) pertaining to the year 1997 would prevail over the law relied upon by the learned counsel for defence which related to the period 1994 and 1996 and accordingly held that the said court had jurisdiction to make enquiry as to whether accused Sanjeev was a juvenile at the time of the incident. 10. 10. It is further recorded that the defence was ordered to produce evidence but no evidence in support of the contention was led by the accused being juvenile. Moreover, in the application itself neither the date of birth of the accused Sanjeev was disclosed nor the approximate age of his was mentioned and the only thing which was mentioned was that at the time of the alleged occurrence, the applicant was a juvenile, hence should be tried by a competent court at Agra under the Juvenile Justice Act. On the contrary, the prosecution had filed a certificate issued by the Principal of Christian inter-college, Mainpuri, showing date of birth of accused as 02/07/1973, which meant that on 15/07/1989 i.e. on the date of incident, he was above 16 years of age. Further it is written that the defence could not show any thing to doubt the veracity of the said certificate and accordingly held that the accused on the date of incident was not a juvenile as he was above 16 years of age, consequently his application was dismissed. 11. The main argument raised by the learned counsel for the revisionist is that the Court of Additional District and Sessions Judge was not empowered to decide the juvenility issue in the present case and it ought to have remitted the matter to the juvenile court to decide the juvenility of the accused under sections 7 (1) of the Juvenile Justice Act, 1986. 12. As regards the argument of the Learned counsel for the revisionist that the court of Special Judge, EC Act did not have jurisdiction to decide the point of juvenility, I am of the opinion that the said argument is not valid because apart from the case laws, the Act of 1986 itself provided under sections 7 (3) as follows: "(3) The powers conferred on the Board or Juvenile Court by or under this Act may also be exercised by High Court and the Court of Sessions, when the proceeding comes before them in appeal, revision or otherwise." 13. Special Judge is also a Sessions Judge. Section 9 (3) of the Code of Criminal Procedure provides that the High Court will also appoint District and Sessions judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. Special Judge is also a Sessions Judge. Section 9 (3) of the Code of Criminal Procedure provides that the High Court will also appoint District and Sessions judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. Thus the Special Judge who is also Additional Sessions Judge is included in the definition of the Sessions Court within the ambit of Section 7 (3) of Juvenile Justice Act. The word ''otherwise' occurring in Section 7 (3) of the Juvenile Justice Act indicates that if the question of determination as to whether a person is juvenile or not is brought before the Court of Sessions even otherwise than in appeal, revision etc. in that case, the Sessions Judge has the power of the Board or Juvenile Court stated under the said Act. The jurisdiction of the Special Judge therefore, cannot be challenged in view of Section 7 (3) of the Act. 14. Therefore I am of the opinion that despite the case laws relied upon by the learned counsel for the revisionist which were also placed reliance by the defence side before the trial court, regarding them it may be mentioned that those cases may have different facts than the facts in the present case, hence no opinion is required to be expressed by me in that regard particularly in light of the provision of law quoted above under sections 7 (3) of the Act of 1986. In view of that provision it was clearly the position of law that the Sessions Judge had the power to decide the juvenility of the accused. 15. Section 32 of the Juvenile Justice Act, 1986 also provides for determination of age of a juvenile which is as follows: "(1) where it appears to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due enquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be. (2) No order of competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been passed is not a juvenile, and the age recorded by the competent authority to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person." 16. Forum of enquiry/trial of Juvenile even under subsequent law i.e. under Juvenile Justice Act 1 of 2000 has been provided under Section 6 of 2000 Act as under : "Section 6 - Power of Juvenile Justice Board - (1) where a Board has been constituted for any District, such Board shall, notwithstanding anything contained in any other law for the time being in force and save as otherwise expressly provided in this Act have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law. (2) The powers conferred on the Board by or under this Act may also be exercised by High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise." 17. Section 7- A of the Act of 2000 (w.e.f. 22/08/2006) says (1) whenever a claim of juvenility is raised before any court or a court is of the opinion that the accused was a juvenile on the date of commission of offence, the court shall make an enquiry or 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 child or not, stating his age as nearly as may be: provided that claim of juvenility may be raised before any Court and it shall be recognised 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 there-under, even if the juvenile has ceased to be so on or before the date of commencement of the 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 orders, and the sentence, if any, passed by a court shall be deemed to have no effect. 18. In Nafees Ahmad vs State of U.P., 2010 70 AllCriC 305 (Allahabad) it has been laid down that while holding enquiry to decide juvenility of a person under the Act, 2000 the court is bound to give opportunity to the parties to plead their evidence. 19. The procedure for determination of age of the child in conflict with law is also provided under section 94 of the JJ Act, 2015: The section 94 (1) of the JJ Act, 2015 has provided that where, it is obvious that the Committee or Board, based on appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation and stating the age of the child as nearly as may be proceed with enquiry under Section 14 or sections 36, as the case may be, without waiting for further confirmation of the age. 20. Section 94 (2) of the JJ Act, 2015 stipulates that in case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining - (i) The date of birth certificate from the school, or the matriculation or equivalent certificates from the concerned examination Board, if available; and in the absence thereof; (ii) The birth certificate given by a Corp or Municipal Authority or Panchayat; (iii) And only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within 15 days from the date of such order. 21. 21. Therefore it is apparent that not only in the Juvenile Justice Act, 1986, rather in the subsequent Acts, the court of Sessions has been empowered to decide the question of juvenility, therefore the reasoning given by the learned counsel the revisionist does not appear to have any force that the trial court, being court of Sessions, did not have power to decide the juvenility of the accused. 22. As regards merits of the case at hand, it is mentioned in the impugned order that no evidence in support of the contention that the accused was juvenile, was adduced by the defence and in the application, neither the date of birth of accused was mentioned nor the approximate age of the accused was mentioned and the only mention was made therein that "at the time of the alleged occurrence applicant was juvenile and as such his case should be tried under the Juvenile Justice Act by the competent court at Agra.". It is further recorded that on the contrary, the prosecution had filed a certificate issued by the Principal of Christian Inter-College, Mainpuri showing the date of birth of the accused as 02/07/73, meaning thereby that on 15/07/1989, i.e. the date of incident, the accused was about 16 years of age and that defence could not show anything to doubt veracity of the said certificate. Accordingly the accused revisionist was held not juvenile. 23. It is apparent from the impugned order that the same has been passed on merits and nothing has been argued before this court on the merit of the order except that the court of Sessions, which has decided the same did not have power to decide it, which has already been found by me to be wrong argument as per law cited above, therefore I do not find any force in the present revision which deserves to be dismissed and is accordingly dismissed. 24. The office is directed to transmit back the trial courts file along with a copy of this order for expeditious disposal of the case as already too long a period has been consumed in deciding this revision.