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2019 DIGILAW 390 (UTT)

Raju v. State Of Uttarakhand

2019-07-05

ALOK SINGH, RAVINDRA MAITHANI

body2019
JUDGMENT : Ravindra Maithani, J. Appellant Raju is in jail. The instant criminal appeal has been preferred by the appellant against the judgment and order dated 08/10.06.2015 passed by the FTC/Additional Sessions Judge/Special Judge (POCSO), Rudrapur, District Udham Singh Nagar in Special Sessions Trial No.122 of 2014, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 12 years with a fine of Rs.50,000/-, and in default of payment of fine, to undergo simple imprisonment for a further period of six months under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO Act'); and to undergo rigorous imprisonment for 03 years with a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months under Section 363 IPC. 2. The appellant is being defended by learned Amicus Curiae. An application No.1483 of 2019 is received from the appellant through jail stating therein that his date of birth is 05.06.1998 and, on the date of incident, he was 16 years 2 months 13 days old, therefore, the matter may be reconsidered and brought to the notice of the Juvenile Justice Board concerned. 3. Learned Amicus Curiae for the appellant would submit that an inquiry in terms of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act, 2000') has to be made so as to determine the age of the appellant. The issue of juvenility may be considered at any stage, therefore, it is argued that either the matter may be sent to the concerned District Judge or Registrar (Judicial) of this Court for inquiry in order to ascertain the age of the appellant. 4. In support of his contention, learned Amicus Curiae for the appellant placed reliance upon a decision of Hon'ble Supreme Court in the case of Dharambir vs. State (NCT of Delhi) and another, (2010) 5 SCC 344 , wherein the Registrar (Judicial) of the concerned High Court was directed to make an inquiry and determine the age of the accused on the date of commission of the offence. In Dharambir's case (supra), it was observed as under: "16. In Dharambir's case (supra), it was observed as under: "16. In the present case, as per the report of the Registrar submitted in terms of Section 7-A of the Act of 2000, the age of the appellant as on the date of commission of offences i.e. 25.08.1991 was 16 years 9 months and 8 days. The correctness of the estimate of age by the Registrar is not questioned by the State. The parties have, therefore, accepted the correctness of the age determined by the learned Registrar. In our considered opinion, in the light of the aforestated legal position, the appellant has to be held to be a juvenile as on the date of commission of the offences for which he has been convicted and is to be governed by the provisions of the Act of 2000." 5. Learned Government Advocate for the State would submit that the determination of age of the accused/appellant may be done either by the Registrar of this Court or by the District Judge concerned. 6. Section 7A of the Act, 2000 reads as follows: "7A. Procedure to be followed when claim of juvenility is raised before any court. - (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, 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 a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognized 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 thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this 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." 7. (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." 7. A bare perusal of the aforesaid provisions of 7A of the Act, reveals that the question of juvenility can be raised at any stage and it has to be considered. In the instant case, the records reveal that perhaps, this issue was never raised by the appellant before the trial court. 8. In a recent decision of Hon'ble Supreme Court in the case of Raju vs. State of Haryana,2019 SCC Online 258, the issue of juvenility was also considered. Hon'ble Court observed as hereunder:- "16. Therefore, it is evident that the only inquiry as stipulated under the 2000 Act and the 2007 Rules was conducted by the Registrar (Judicial) upon the directions of this Court, after the Court was satisfied upon going through the school certificates adduced by the Appellant that the certificates in question prima facie entitled him to claim the conduct of such an inquiry. In such a situation, the question regarding whether precedence may be given to the inquiry of a Registrar (Judicial) of this Court over the opinion of the High Court regarding the age of an accused can be restated as whether such inquiry conducted by the Registrar (Judicial) upon the direction of this Court, if thereafter affirmed by this Court, would amount to an inquiry conducted by this Court itself. If this be the case, the findings of such inquiry would prevail over the view taken by the High Court, as is evident from the preceding discussion. 17. We are of the opinion that the above question must be answered in the affirmative. This Court, on previous occasions as well, has adopted the practice of directing the Registrar (Judicial) to conduct the inquiry in terms of Rule 12 of the 2007 Rules on behalf of this Court, and accepted the findings made therein (see Dharambir v. State (NCT) of Delhi, (supra). This Court, on previous occasions as well, has adopted the practice of directing the Registrar (Judicial) to conduct the inquiry in terms of Rule 12 of the 2007 Rules on behalf of this Court, and accepted the findings made therein (see Dharambir v. State (NCT) of Delhi, (supra). Seeing that the Registrar (Judicial) is a District Judge serving on deputation at the Supreme Court, recourse to his or her assistance in the form of collecting evidence and arriving at a finding regarding the claim of juvenility of the person concerned may be undertaken by this Court in order to save its judicial time. However, it must be stressed that the findings in an inquiry conducted by the Registrar (Judicial) would not per se prevail upon a contrary view taken by the High Court. Only after this Court applies its judicial mind to such report with due regard to the confines of the procedure stipulated in Section 7A of the 2000 Act and Rule 12 of the 2007 Rules, and only if it thereafter confirms the findings in such report would the same prevail upon a contrary view taken by the High Court which is not based upon any such inquiry." 9. Be that as it may. It is well settled that the issue of juvenility can be raised at any stage. 10. In view of the foregoing discussions, Registrar (Judicial) of this Court is directed to make an inquiry and determine the age of the appellant on the date of commission of offence. He shall submit a report to this Court within four weeks. 11. List this matter after four weeks.