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Allahabad High Court · body

2020 DIGILAW 1233 (ALL)

Rajesh Kumar v. State of U. P.

2020-10-15

DINESH PATHAK

body2020
JUDGMENT : DINESH PATHAK, J. 1. Heard Sri. Akhilesh Srivastava, learned counsel for revisionist, Sri. O.P. Mishra, learned A.G.A. for State, Sri. Satendra Kumar Upadhyay, learned counsel for O.P. No. 2, who has refused to file the counter affidavit, and perused the record on board. 2. The instant criminal revision under Section 397/401 Cr.P.C. has been preferred against order dated 22.11.2019 passed by Additional Sessions Judge/Fast Track Court, Court No. 2, Aligarh in Sessions Trial No. 961 of 2012 arising out of Case Crime No. 189 of 2012 under Sections 393, 302 IPC, Police Station-Akrabad, District-Aligargh, whereby application dated 09.07.2017 filed by revisionist, claiming himself to be a juvenile at the time of incident, has been rejected. 3. In the present matter, revisionist is claiming himself as a juvenile. As per FIR version, in the intervening night of 03/04.05.2012, accused-revisionist along with two other persons barged into the tower with an intention of looting the battery installed there. While they were challenged, two of the accused fled away from the scene and third accused i.e. revisionist was caught hold by the informant's son namely, Bablu and in order to set himself free, accused-revisionist discharged fire shot upon Bablu, who sustained injury on his chest and died on the spot. In the process of catching hold, one wallet, one combination plier (pilash), one wrench (pana), a handle of screwdriver and one white towel fell down on the spot. The wallet contained driving license and identity card of revisionist as well as one mobile sim and cash amounting Rs.30 in it. On the basis of aforesaid recovery from the spot, accused-revisionist has been named in the FIR. Taking the plea of juvenility, revisionist claimed for separate trial and to this effect, he moved an application dated 09.07.2017 before the trial Court to declare him juvenile, as his date of birth is 07.07.1994 and at the time of incident, he was hardly aged about 17 years 9 months and 27 days. 4. In support of his claim of juvenility, revisionist had filed School Leaving Certificate and one medical report. Ram Singh, father of revisionist, and one Veer Pal Singh, teacher of the school have given their statements in support of revisionist's claim of juvenility and they had corroborated the claim of revisionist that his date of birth is 07.07.1994. 5. 4. In support of his claim of juvenility, revisionist had filed School Leaving Certificate and one medical report. Ram Singh, father of revisionist, and one Veer Pal Singh, teacher of the school have given their statements in support of revisionist's claim of juvenility and they had corroborated the claim of revisionist that his date of birth is 07.07.1994. 5. After examining the school certificate, which was proved by school teacher from the S. R. Register and statements of witnesses, learned Court below came to a conclusion that date of birth of revisionist is 07.07.1994 and, accordingly, at the time of incident i.e. 04.05.2012 he was aged about 17 years 10 months, but the Court below has refused to treat the revisionist as a juvenile on the ground that hardly 50-55 days were short in completion of 18 years of his age and he was able to understand the consequences of the occurrence. 6. Learned counsel for the revisionist submitted that since the revisionist was a juvenile, as his date of birth was noted to be 07.07.1994, on the date of occurrence i.e. 04.05.2012, he is entitled to the benefit of provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as “J.J. Act, 2000”). The Court below had partly applied J.J. Act, 2000 only with respect to determining the age of present revisionist but it had illegally applied the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as “J.J. Act, 2015”) in negating his juvenility on the ground of his ability to understand the nature of crime. Learned counsel for revisionist has emphasized upon the provisions of J.J. Act, 2015 which denotes the power of Board by conducting preliminary assessment into the heinous offence. Under the aforesaid provision Board has been entrusted to conduct preliminary enquiry to assess with regard to mental and physical capacity of an accused for committing a crime and also his ability to understand the consequences of the offence and circumstances in which he allegedly committed the offence. Under the aforesaid provision Board has been entrusted to conduct preliminary enquiry to assess with regard to mental and physical capacity of an accused for committing a crime and also his ability to understand the consequences of the offence and circumstances in which he allegedly committed the offence. Learned counsel for the revisionist submitted that since this matter relates to the year 2012, provisions of J.J. Act 2000 ought to have been applied in determining the question of juvenility of the accused and, as per provisions of Section 7-A of J.J. Act, 2000, after coming to the conclusion that accused is below the age of 18 years on the date of occurrence, it shall forward the matter before the Juvenile Justice Board for passing appropriate order. Learned counsel has placed reliance on a judgment of Hon'ble Supreme Court in the matter of Abdul Razzak vs. State of U.P. AIR 2015 SC 1770 . In the aforesaid case, the accused/petitioner was convicted under Section 302 I.P.C. and sentenced to undergo life imprisionment by the trial court. The order of the trial court was affirmed by the High Court and his Special leave petition was also dismissed by the Hon'ble Supreme Court. Even the review petition filed before the Hon'ble Supreme Court was also dismissed. At subsequent stage, Hon'ble High Court took suo-moto action under the provisions of Section 7-A of J.J. Act, 2000. Juvenile Justice Board, Agra had examined the case of the petitioner/accused and held that on the date of incident, he was less than 18 years of age. In this background, accused/petitioner moved before the Hon'ble Supreme Court with the prayer to release him from the custody and his prayer was allowed. After discussing several decisions of the Hon'ble Supreme Court, it has been held that even if a person was not entitled to the benefit of juvenilities under 1986 Act or the present Act prior to its amendment in 2006, such benefit is available to a person undergoing sentences if he was below 18 years of age on the date of the occurrence. Such relief can be claimed even if a matter has been finally decided. 7. Per contra, learned counsel for O.P. No. 2 has supported the impugned order passed by the Court below and submitted that the Court below has rightly rejected the claim of the revisionist with respect to declaring him as a juvenile. Such relief can be claimed even if a matter has been finally decided. 7. Per contra, learned counsel for O.P. No. 2 has supported the impugned order passed by the Court below and submitted that the Court below has rightly rejected the claim of the revisionist with respect to declaring him as a juvenile. It is further submitted that accused has almost attained age of majority i.e. 18 years of age and was having ability to understand the consequences of the offence and the circumstances in which he was involved in the crime. He has further submitted that present revisionist should be treated as an adult and no ground is made out to consider his claim as a juvenile under the Juvenile Act. 8. The Juvenile Act is a special enactment to protect the fundamental right of the children and meet out their needs, as enshrined in our Constitution. Now it is no more res-integra that a child or juvenile in conflict with law, who is treated to be less than 18 years of age, can claim benefit under the time to time modified/amended enactments. At present, J.J. Act, 2015 is enforced after consolidating the amending law relating to children alleged and found in conflict with law. 9. In the matter in hand, the occurrence is of dated May 4, 2012 and on the date of occurrence, J.J. Act, 2000 was enacted. Therefore, the revisionist can claim his juvenility and benefits relating to it under the J.J. Act, 2000. Date of occurrence i.e. May 4, 2012 is the relevant date to determine the age of accused claiming himself as juvenile under the J.J. Act, 2000. 10. For the purpose of determining of juvenility of the accused and giving benefit relating to it, reference may be made to Section 7-A of J.J. Act, 2000 read with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as “J.J. Rules, 2007”). 11. Section 7-A was inserted in J.J. Act, 2000 by virtue of Act No. XXXIII, 2006. Section 7-A is nothing but an extension of Section 7 of J.J. Act, 2000 which denotes that after enquiry, in case the court is of the opinion that the accused is a juvenile on the date of commission of offence, then the court should refer the matter to the Juvenile Board for passing the appropriate order. Section 7-A is nothing but an extension of Section 7 of J.J. Act, 2000 which denotes that after enquiry, in case the court is of the opinion that the accused is a juvenile on the date of commission of offence, then the court should refer the matter to the Juvenile Board for passing the appropriate order. Section 7-A is quoted below: “7-A. 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 enquiry, taken 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 the 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 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 order and the sentence if any, passed by a court shall be deemed to have no effect.” 12. Rule 12 of J.J. Rules, 2007, denotes the procedure for determining the age of a child or a juvenile in conflict with law. Rule 12 is quoted below: “Rule 12. Procedure to be followed in determination of age - (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima-facie on the basis of physical appearance or documents, if available and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining: (a)(i) the matriculation or equivalent certificates, if available and in the absence whereof. (ii) the date of birth certificate from the school (other than a play school) first attended and in the absence whereof. (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, 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 and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, Clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in Sub-Rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter-alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in Sub-Rule (3) of this Rule. (6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in Sub-Rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 13. A bare perusal of aforesaid section clearly reveals that the Court concerned shall make an enquiry with respect to determining the juvenility of an accused on the date of commission of the offence and in that process it can take such evidence as may be necessary so as to determine the age of such person and shall record a finding whether the person is juvenile or child or not, stating his age as nearly as may be. 14. Hon'ble Supreme Court has expounded in the matter of Jitendra Singh alias Babboo Singh and Another vs. State of U.P. (2013) 11 SCC 193 that claim of juvenility can be raised by a person at any stage and in case, Court finds that the person is juvenile on the date of commission of offence, it has to forward the juvenile to the Board for passing appropriate order. The relevant paragraphs 81 and 82 of the aforesaid judgment are quoted below: “81. The matter can be examined from another angle. Section 7-A(2) of the Act prescribes the procedure to be followed when a claim of juvenility is made before any court. The relevant paragraphs 81 and 82 of the aforesaid judgment are quoted below: “81. The matter can be examined from another angle. Section 7-A(2) of the Act prescribes the procedure to be followed when a claim of juvenility is made before any court. Section 7-A(2) is as under: “7-A. Procedure to be followed when claim of juvenility is raised before any court: (1).......... (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 order and the sentence if any, passed by a court shall be deemed to have no effect.” 82. A careful reading of the above would show that although a claim of juvenility can be raised by a person at any stage and before any court, upon such court finding the person to be a juvenile on the date of the commission of the offence, it has to forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed shall be deemed to have (sic no) effect. There is no provision suggesting, leave alone making it obligatory for the court before whom the claim for juvenility is made, to set aside the conviction of the juvenile on the ground that on the date of commission of the offence he was a juvenile, and hence not triable by an ordinary criminal court. Applying the maxim expressio unius est exclusio alterius, it would be reasonable to hold that the law insofar as it requires a reference to be made to the Board excludes by necessary implication any intention on the part of the legislature requiring the courts to set aside the conviction recorded by the lower court. Parliament, it appears, was content with setting aside the sentence of imprisonment awarded to the juvenile and making of a reference to the Board without specifically or by implication requiring the court concerned to alter or set aside the conviction. That perhaps is the reason why this Court has in several decisions simply set aside the sentence awarded to the juvenile without interfering with the conviction recorded by the court concerned and thereby complied with the mandate of Section 7-A(2) of the Act.” 15. That perhaps is the reason why this Court has in several decisions simply set aside the sentence awarded to the juvenile without interfering with the conviction recorded by the court concerned and thereby complied with the mandate of Section 7-A(2) of the Act.” 15. In the matter of Abuzar Hossain vs. State of West Bengal, (2012) 10 SCC 489 , a three Judges Bench of Hon'ble Supreme Court has summarized the law relating to juvenility as to how and when it can be claimed by a person. The relevant paragraph 39 of the said judgment is quoted below: “39. Now, we summarise the position which is as under: 39.1. A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in appeal court. 39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima-facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility. 39.3. As to what materials would prima-facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rule 12(3)(a)(i) to (iii) shall definitely be sufficient for prima-facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters list, etc. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard and fast rule can be prescribed that they must be prima-facie accepted or rejected. In Akbar Sheikh and Pawan these documents were not found prima-facie credible while in Jitendra Singh the documents viz. school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant’s age. If such documents prima-facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7A and order an enquiry for determination of the age of the delinquent. 39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of age of the delinquent. 39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima-facie on the touchstone of preponderance of probability. 39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised.” 16. The matter should be considered prima-facie on the touchstone of preponderance of probability. 39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised.” 16. Learned Court below has illegally partly applied the provisions of J.J. Act, 2015 to assess the ability of the revisionist/accused to understand the nature of crime and declined to treat him as a juvenile. It is an admitted fact that date of occurrence is 04.05.2012, therefore, J.J. Act, 2000 should have been applied in the present matter. There is no provision in J.J. Act, 2000, in determining the juvenility, with respect to assessment of mental and physical capacity of an accused to commit such offence as well as his ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence. 17. Under the newly inserted Section 7-A to the J.J. Act, 2000, it is made obligatory to the court that, after enquiry, if it finds a person to be juvenile on the date of commission of offence, it shall refer the matter to the Juvenile Justice Board for passing appropriate orders as per the provisions of law. Provisions as contained in Section 7-A read with Rule 12 of J.J. Rules, 2007, clearly reveals that after enquiry, in case the person is considered as juvenile he should be given benefit of the Act. 18. Learned counsel for the opposite party no. 2 has not made any comment qua the enquiry conducted by the Court below in determining the age of the accused-revisionist. It appears that respondent no. 2/first informant is satisfied with respect to the date of birth and age of the accused as determined by the Court below. 19. In view of the settled legal proposition and the discussions made above, present revisionist is entitled to benefit of J.J. Act 2000, inasmuch as, on the date of occurrence i.e. 4.5.2012, he was below 18 years of age. The trial Court, after discussing the documents and statements made by the witnesses, came to the conclusion that the accused/revisionist was below the age of 18 years on the date of occurrence. 20. The trial Court, after discussing the documents and statements made by the witnesses, came to the conclusion that the accused/revisionist was below the age of 18 years on the date of occurrence. 20. In the present matter, once the Court below has completed its enquiry after discussing the relevant documents and statements of the witnesses that the revisionist/accused is less than 18 years of age, it has no option but to refer the matter to the Board, for passing appropriate orders, as provided in Section 7-A of J.J. Act, 2000. Juvenility of the present revisionist has illegally been denied by applying the provisions of J.J. Act, 2015 on the ground that he was capable of understanding the consequence of the offence and circumstances in which he had allegedly committed the offence. 21. In the light of the facts and law as discussed above, impugned order passed by the Court below is not sustainable and is liable to be quashed. 22. In the result, this revision is allowed. Impugned order passed 22.11.2019 passed by Additional Sessions Judge/Fast Track Court, Court No. 2, Aligarh in Sessions Trial No. 961 of 2012 arising out of Case Crime No. 189 of 2012, is quashed. Matter is remitted to the Court below for taking appropriate action under the provisions of law as embodied under Section 7-A(2) of J.J. Act, 2000. 23. Certify this judgment to the lower Court immediately for information and necessary compliance.