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2023 DIGILAW 245 (ALL)

Chhotakki @ Kiran v. State of U. P.

2023-01-24

SHREE PRAKASH SINGH

body2023
JUDGMENT Shree Prakash Singh, J. Heard Sri Arvind Kumar Verma, learned counsel for the applicant, Sri Aniruddh Kumar Singh, learned AGA-I for the State. 2. Since pure legal question is involved in this matter, therefore the notice to the opposite party no. 2 is hereby dispensed with. 3. By means of the instant application, the applicant has prayed for quashing of the impugned order of non-bailable warrant dated 27.09.2022 and impugned order dated 07.12.2022, passed by the learned Chief Judicial Magistrate, Sitapur, in Criminal Case No. 3095 of 2001, arising out of case crime no. 172 of 2001, under Sections 498A, 304B of the IPC and Sections 3/4 of the Dowry Prohibition Act, relating to Police Station Pisawan, District Sitapur. 4. Factual matrix of the case is that the applicant was minor (thirteen years of age) at the time of alleged incident, as her date of birth has been shown as 20.07.1988. The opposite party no. 2, Sri Ram Chandra lodged the first information report, against the present applicant along with the other co-accused persons. Thereafter, the investigation was conducted and the charge-sheet was filed. After the alleged incident, the applicant performed marriage with one Prakash, resident of Village Malhpur Chaubey and started living at her matrimonial house and, thus, she could not receive the summons and, ultimately, when the non-bailable warrant was issued on 27.09.2022, she came to know about the case and, thereafter, approached her counsel, who filed an application before Chief Judicial Magistrate, Sitapur on 14.10.2022 with a prayer that the matter may be referred to the Juvenile Justice Board for trial, as she was thirteen years of age at the time of the incident. On the said application, the Chief Judicial Magistrate, Sitapur passed the order on 07.12.2022, whereby, the prayer has been rejected and order of non-bailable warrant was passed and proclamation under Section 82 CrPC was issued against the applicant. Thus the applicant assailed the order dated 27.09.2022 and 07.12.2022 by way of instant application. 5. On the said application, the Chief Judicial Magistrate, Sitapur passed the order on 07.12.2022, whereby, the prayer has been rejected and order of non-bailable warrant was passed and proclamation under Section 82 CrPC was issued against the applicant. Thus the applicant assailed the order dated 27.09.2022 and 07.12.2022 by way of instant application. 5. Contention of learned counsel for the applicant is that an FIR was lodged by the complainant, Ram Chandra under Section 498A, 304B of the IPC and under Section 3/4 of the Dowry Prohibition Act at Police Station Pisawan, District Sitapur on 04.09.2000 and the present applicant, who was the minor on the date of said incident, has been implicated in the present case due to ulterior motive as the age of the applicant on the date of incident was thirteen years, as per her date of birth. He submits that when this fact came into knowledge that first information report was lodged against the present applicant and all the family members, the applicant surrendered her before the court concerned and she was granted bail by the trial court vide order dated 08.02.2001. 6. Further submission is that the Investigating Officer conducted the investigation and submitted the charge-sheet against the family members of the applicant in Case Crime No. 172 of 2000 and the investigation against the applicant was kept pending but later on, under the influence of the opposite party no. 2, the charge-sheet was also submitted against the applicant on 24.03.2001 assuming her to be major, although it is apparent from the charge-sheet that the present applicant was about thirteen years of age as is mentioned in the charge-sheet itself. 7. 2, the charge-sheet was also submitted against the applicant on 24.03.2001 assuming her to be major, although it is apparent from the charge-sheet that the present applicant was about thirteen years of age as is mentioned in the charge-sheet itself. 7. He contended that after filing of the charge-sheet against the applicant, the criminal case was registered as Criminal Case No. 3095 of 2001, (State v. Chottaki @ Kiran) but neither any notice nor any summon was ever served upon the applicant and the trial court without ensuring the fact as to whether the summon has been served upon the applicant or not, started issuing non-bailable warrants against the applicant and as soon as the fact with respect to the issuance of non-bailable warrant came into knowledge of the applicant, she moved an application on 14.10.2022 before the Chief Judicial Magistrate, Sitapur and while moving the application, the plea has been raised that since the applicant was minor on the date of the incident, thus, the matter may be transferred to the Juvenile Justice Board concerned. He added that the Chief Judicial Magistrate, Sitapur without applying its judicial mind and without properly scrutinizing the materials available on record, rejected the application of the applicant and issued non-bailable warrant and started the proceeding of proclamation under Section 82 of CrPC. 8. Adding his arguments, he submits that the learned trial court has ignored the provisions of existing section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred as 'the Act, 2000'), as well as the fact that the applicant was minor on the date of incident, thus, he has committed patent illegality. 9. For reference, Section 7A of the Act, 2000 is extracted as under:- "7A. Procedure to be followed when claim of juvenility is raised before any court. 9. For reference, Section 7A of the Act, 2000 is extracted as under:- "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 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect." 10. Referring the abovesaid provisions, he submits that the trial court did not speak even a single word regarding determination of juvenility of the applicant, thus, the provision regarding enquiry for determining the juvenility has clearly been violated. The trial court though noted the argument of the applicant in the impugned order that she was 13 years of age at the time of incident but neither discussion is there nor finding is recorded. 11. He next added that Section 49 of the Act, 2000 deals with the presumption and determination of the age and, thus, it was also incumbent upon the competent authority to enquire about the fact that whether the alleged accused is a child conflict with law or not. 12. He further contended that the procedure for determination of age has specifically been provided under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. 12. He further contended that the procedure for determination of age has specifically been provided under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The exhaustive rules with respect to the procedure has been prescribed only to ensure the fact that no juvenile should be tried with other than the procedure prescribed in the Act, 2000 and, thus, he submits that the trial court did not bother to adopt the procedure which was to be followed for determination of the age. Lastly, he submits that since the trial court has at the first hand denied the benefit of juvenility to the present applicant even after application moved by the applicant, therefore, the trial court has not only rejected the application of the applicant but he has also skipped the provisions of law. 13. In support of his contention, he has placed reliance on the judgement rendered in the case of Abuzar Hossain @ Gulam Hossain v. State of West Bengal reported in 2012 (10) SCC 489 and has referred paragraph 39.1 of the abovesaid judgement, wherein it has categorically been held that the claim of juvenility can be raised at any stage, even after trial is concluded and appeal is decided. 14. Paragraph 39.1 is extracted 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." 15. Relying upon the aforesaid, he submits that the Hon'ble Apex Court has held that delay in raising the claim of juvanility cannot be a ground for rejection of such claim and the same can be raised even at the stage of appeal, if not pressed before the trial court. 16. Further submission is that since it is clear from the charge-sheet as well as the school leaving certificate, which has been annexed as annexure no. 16. Further submission is that since it is clear from the charge-sheet as well as the school leaving certificate, which has been annexed as annexure no. 3 to the application, issued by the Primary School, Dhadhnamau, that the age of the applicant was 13 years at the time of incident as her date of birth is 20.07.1988 and the charge-sheet also mentions the fact that the age of the present applicant was 13 years at the time of incident. He submits that undoubtedly the present applicant was minor at the date of the alleged occurrence and, thus, the Chief Judicial Magistrate, Sitapur has no jurisdiction to proceed with the trial of the applicant and the matter should have been remitted back to the Juvenile Justice Board concerned. He next submits that the order passed by the Chief Judicial Magistrate dated 07.12.2022 is therefore unlawful and against the law propounded by the Apex Court and thus, the same is unsustainable. 17. On the other hand, learned counsel appearing for the State has controverted the contentions of the learned counsel for the applicant and submits that the incident has taken place in the year 2000 and it is an admitted fact that the present applicant, after lodging of the FIR, appeared before the trial court and she was enlarged on bail, which itself discloses that the criminal case was very well in the knowledge of the applicant. He further submits that since the correct address was not informed to the trial court, therefore, summons were sent on the address which was available on record of the trial court and in case of non-appearance, the trial court issued non-bailable warrants and has taken recourse of the other consequential proceedings and when the Police somehow could reach to the place of the present applicant, she, in the compelling circumstances, appeared before the trial court, thus, it shows that the applicant was deliberately trying to avoid the criminal proceedings and was escaping herself since last 20 years, due to which, the trial proceeding has become delayed. He further submits that the present applicant has not come with clean hands before this Court and she has misused the process of law and the liberty of bail granted by the trial court. 18. He further submits that the present applicant has not come with clean hands before this Court and she has misused the process of law and the liberty of bail granted by the trial court. 18. Addressing the issue, learned counsel for the State submits that since the non-bailable warrant was issued against the applicant and further the proceeding of Section 82 of CrPC was also initiated and, therefore, once the application was filed by the applicant, the same was dismissed, while discussing in detail all these circumstances and it is not understandable that once the fact was in the knowledge of the applicant that she was minor at the time of the incident, why did she not seek the benefit of the provisions of Section 7A of the Act, 2000, uptil twenty years . Thus, there is no illegality or perversity in the impugned order passed by the Chief Judicial Magistrate, Sitapur and this application is liable to be dismissed. 19. Having heard learned counsel for the parties and after perusal of the records, it emerges that the First Information Report was lodged way-back in the year 2000, wherein, while lodging the First Information Report under Sections 498-A, 304 B of IPC read with Section 3/4 of the Dowry Prohibition Act, the present applicant was implicated. Thereafter, she got married and started living separately with her husband although prior to her marriage, she appeared before the trial court and applied for bail and she was enlarged on bail. It also reveals that the summons were never served upon the applicant as the postal address of the applicant in the record of the trial court was the parental address and the parties did not provide the residential/postal address of the matrimonial place of the applicant. As per the averments of the applicant, the proceedings of non-bailable warrant as well as proclamation under Section 82 of CrPC came into her knowledge, when she appeared before the trial court and submitted an application for declaring her as a juvenile. 20. When this Court examined the order of the learned trial court dated 07.12.2022 impugned in this application, it emerges that an application dated 14.10.2022 was before the trial court, whereby, the applicant claimed her as a juvenile showing her age as 13 years at the time of the incident. 20. When this Court examined the order of the learned trial court dated 07.12.2022 impugned in this application, it emerges that an application dated 14.10.2022 was before the trial court, whereby, the applicant claimed her as a juvenile showing her age as 13 years at the time of the incident. The trial court though mentioned the aforesaid application and prayer of the applicant in the order but no finding has been recorded on the core issue of determining the juvenility of the applicant. 21. In the present matter, the application was filed for determination of age and for declaring the applicant as a juvenile/child conflict with law, but the trial court did not consider the same and has issued non-bailable warrant and the proclamation under Section 82 CrPC, ignoring the prayer of the applicant. 22. This Court is not unmindful of the provisions of law as well as the law propounded by the Apex Court with respect to claim of juvenility. From bare reading of Section 7(A) of the Act, 2000, it reveals that 'Whenever' a claim of juvenility is raised before any Court and the Court is of the opinion that an accused was juvenile on the date of commission of the offence, the Court shall immediately make an inquiry taking necessary evidence for determining the age of person, to come to the conclusion that as to whether such an accused is a juvenile or not. 23. Section 7(A) of the Act, 2000, emphasise that the claim of juvenility can be raised at any stage even after final disposal of the case before the trial court or after the final order passed in an appeal. It has also been settled that delay in raising the claim of juvenility cannot be a ground for rejection of the claim of juvenility. 24. It has also been settled that delay in raising the claim of juvenility cannot be a ground for rejection of the claim of juvenility. 24. After the aforesaid discussion it is borne out that intent of the legislative is very clear from bare reading of the provisions of Section 7(A) of the Act, 2007 as it mentions that, 'whenever a claim of juvenility is raised', and that clearly shows that an absolute opportunity has been accorded to such an accused to set a claim of his or her being juvenile at the time of the incident and further that can be raised before 'any Court' which indicates that the same can be raised even at the Court of appeal as well as the trial court. The claim of the juvenility can be adjudicated in an appeal, even if, the same was not considered before the trial court. 25. So far as the present case is concerned, the matter is at the stage of trial, though the same is of year 2000 and after about delay of 22 years, the applicant is claiming her to be a juvenile but as per the provisions of law, delay cannot be a ground for entertaining such claims but the Magistrate while passing the impugned order, prima facie, seems to be unreasonable and ignorant of the provisions of law as well as the law propounded by the Apex Court with respect to deciding the claim of juvenility. Further there seems to be no lapse or lacuna on the part of the applicant while submitting an application on 14.10.2022. 26. Consequently, the impugned order dated 07.12.2022 passed by the trial court in Case No. 3095 of 2001 arising out of Case Crime No. 172 of 2001, is hereby set aside. 27. The matter is remitted back to the trial court concerned. 28. The applicant is at liberty to file a fresh application within a period of 30 days from the date of receiving of certified copy of this order, before the trial Court and if such an application is filed, the same shall be decided within further period of 45 days strictly in accordance with law. 29. For the aforesaid period, the non-bailable warrant as well as the proclamation under Section 82 of CrPC shall remain stayed. 30. With the aforesaid directions and observations, the application is hereby allowed.