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2020 DIGILAW 193 (JHR)

Tulsi Kapardar v. State Of Jharkhand

2020-01-31

DEEPAK ROSHAN

body2020
JUDGMENT 1. The instant application is directed against the judgment dated 20th May, 2013 passed by the learned Sessions Judge, Bokaro in Criminal Appeal No. 226 of 2012, whereby the appeal preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence, both dated 5th October, 2012 passed by the learned Judicial Magistrate 1st Class, Bokaro in G.R. Case No. 431 of 2001 corresponding to T.R. No. 213 of 2012, whereby the petitioner has been convicted for the offence under Sections 448 and 354 of the I.P.C. and was directed to undergo R.I. for one year for the offence under Section 354 of the I.P.C. and further directed to undergo S.I. for six months for the offence under Section 448 of the I.P.C. and the sentences were run concurrently, has been affirmed. 2. During pendency of the instant revision application, an interlocutory application has been filed under Section 7 (A) of Juvenile Justice (Care and Protection of Children) Act, 2000 (herein referred to as the Act) stating therein that at the time of occurrence the petitioner was a juvenile. 3. Learned counsel for the petitioner submits that the petitioner is an illiterate person and he has taken birth in village, therefore he is not having a ''Birth Certificate''. He further submits that the date of birth mentioned in the voter card as on 01.01.2007, he was 21 years old which would be evident from Voter Identity Card. The said Voter Identity Card has been annexed as Annexure-A to the interlocutory application. He further submits that calculating his date of birth from the Voter Identity Card, the age of the petitioner at the time of occurrence was only 15 years. Relying upon the Voter Identity Card the petitioner prayed that the age of the petitioner may be directed to be assessed by the competent authority. He further submits that though this plea has been taken for the first time before this Court, but the question of law can be raised at any stage. 4. Per contra, learned Addl. P.P rebutting the contention of the petitioner submits that the question of date of birth should have been taken by the petitioner at the initial stage and raising this issue before this Court in the revisional jurisdiction is not sustainable in the eye of law. 4. Per contra, learned Addl. P.P rebutting the contention of the petitioner submits that the question of date of birth should have been taken by the petitioner at the initial stage and raising this issue before this Court in the revisional jurisdiction is not sustainable in the eye of law. He further submits that the Jharkhand Madhyamic Pariksha Parishad, Ranchi, issued an admit card to the petitioner in which his date of birth is 12.11.1984 as such on the day of commission of offence his age was about 16 years and 6 months. He further submits that none of the documents which has been annexed as Annexures with the interlocutory application comes within the scheme of the constitution of sub-Section (2) Clause (i) and (ii) of Section 94 of the Act. He further submits that in view of the judgment passed in the case of Mukkarab and others Vs. State of U.P (2017) 2 SCC 210 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 and the initial burden always lies on the person who claims juvenility. The learned counsel relied on paragraphs 5 and 6 of the counter affidavit which is quoted herein below: ''5. That, neither in his Trial in G.R. Case No. 431/2001 (Trial No. 213/2012) nor in Criminal Appeal No. 226 of 2012, the Appellant has taken the plea of juvenility. It is for the first time in this revision petition he is taking the plea of juvenility under section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter called as ''Act'') on the basis of Election Commission of India Identify Card No. GPV0502443 and which was made on 12.10.2007 and after about 7 years of the conclusion of trial. 6. That, as per his Jharkhand Madhyamic Pariksha Parishad, Ranchi Admit Card his date of birth is 12.11.1984. That means on the day of commission of offence his age i.e. on 17.05.2001 was 16 years and 6 months. Further, neither Annexure-A or AA fits into the scheme of constitution of subsection 2 Clauses (i) and (ii) of Section 94 of the Act.'' 5. Heard, learned counsel for the petitioner and learned Addl. P.P. for the State. That means on the day of commission of offence his age i.e. on 17.05.2001 was 16 years and 6 months. Further, neither Annexure-A or AA fits into the scheme of constitution of subsection 2 Clauses (i) and (ii) of Section 94 of the Act.'' 5. Heard, learned counsel for the petitioner and learned Addl. P.P. for the State. Since a legal issue has been raised by the learned counsel for the petitioner as such, I am not entering into the merits of the case in order to decide the instant application. 6. Juvenile Justice relates to a child below 18 years being given the benefit of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 as amended by the Act of 2006. The concept of Juvenility which was based on the age of the child being below 16, was raised retrospectively to below 18 by the Amendment Act, 2006. 7. The question as to the plea of Juvenility when can be raised has been addressed and well settled in many recent judgments of Supreme Court. In Abdul Razzaq Vs. State of U.P (Criminal Misc. Petition No- 17870 of 2014), an application has been preferred under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (herein after to be referred as the Act) seeking release of the petitioner who has been found to be juvenile. Since special leave petition and review petition have been dismissed and the Honble Apex Court has allowed the application preferred under Section 7-A of the Act and orders dismissing the special leave petition and review petition has been recalled. A claim of Juvenility can be raised at any stage such as: i) Even after the final disposal of the case; ii) It may be raised before the appellate court for the first time; iii) It can be raised before the appellate court even though not raised at the stage of trial court; iv) It can even after the conviction order has been given in the case. 8. The delay in raising the claim of Juvenility cannot be ground for rejection of the claim. With regard to the claim of Juvenility after conviction, the claimant must produce some material which may prima-facie satisfy the court that an inquiry into the claim is necessary. The initial burden has to be discharged by the person who claims the Juvenility. 8. The delay in raising the claim of Juvenility cannot be ground for rejection of the claim. With regard to the claim of Juvenility after conviction, the claimant must produce some material which may prima-facie satisfy the court that an inquiry into the claim is necessary. The initial burden has to be discharged by the person who claims the Juvenility. The Honble Apex Court in the case of Jitendra Singh @ Babboo Singh & Anr vs State of U.P reported in (2010) 13 SCC 523 , has laid down the law in para-7 & 8 as under; ''7. Having given our careful consideration to the submissions made at the Bar we are of the opinion that in the facts and circumstances of this case an enquiry for determining the age of the appellant Jitendra Singh alias Babboo Singh on the date of the commission of the offence shall have to be directed. It is true that in the ordinary course anyone claiming to be a minor on the date of the incident ought to make such a claim at the earliest available opportunity before the trial court or at least before the High Court, but the very fact that no such claim is for any reason made, may not by itself disentitle him to do so before the Apex Court. 8. The decision of this Court in Gopinath Ghosh, Bhoop Ram and Bhola Bhagat cases and in Hari Ram case have recognised the beneficial nature of the provisions enacted by Parliament and held that a technical plea based on delay in the making of the claim of juvenility would not itself disable the person concerned from making such a claim. In Pawan case reliance whereupon was placed on behalf of the respondent, the delay in the making of claim to juvenility was not held to be fatal provided the claim was supported by evidence that would prima facie establish that the claimant was a juvenile on the date of the commission of the offence.'' 9. In the instant case, admittedly, as per the judgment of conviction dated 05.10.2012 the age of the petitioner has been indicated as 23 years. As per the facts of the case, the date of occurrence was 17.05.2001 as such if going by the age mentioned in the judgment of conviction itself, admittedly, the petitioner was about 11 years at the time of occurrence. As per the facts of the case, the date of occurrence was 17.05.2001 as such if going by the age mentioned in the judgment of conviction itself, admittedly, the petitioner was about 11 years at the time of occurrence. Further the Voter Identity Card issued by the competent authority which is annexed as Annexure-A to the interlocutory application clearly transpires that his age is 21 years as on 01.01.2007. Even the admit card which has been annexed by the State transpires that at the time of occurrence he was about 16 years. Therefore, in any view of the matter, prima facie it appears that the petitioner was a juvenile at the time of occurrence. 10. In the case of Jitendra Singh @ Babboo Singh (Supra) the Honble Apex Court has held that the plea of juvenility is raised for the first time should always be guided by the objectives of the Act, 2000 and are not be defeated by hypertechnical approach and the persons who are entitled to get benefits of 2000 Act must get such benefits. 11. In view of the aforesaid discussions and the judicial pronouncements, I am of the considered opinion that interest of justice would be sufficed if the matter is remitted back to the learned trial Court with a direction to conduct an enquiry in accordance with the Act in order to ascertain the age of the petitioner at the time of occurrence and pass an order afresh. 12. As a result of the instant application is allowed and the case is remitted back to the court of learned Sessions Judge, Bokaro who shall pass necessary order after following the procedure as enshrined in the Act of 2000 and pass a necessary order within a period of six months from the date of receipt of the copy of this order. 13. Accordingly, this revision application along with interlocutory application stands disposed of. 14. Let the lower court record be sent to the court concerned forthwith.