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2023 DIGILAW 942 (ALL)

Mod. Iqbal Gaji v. State of U. P.

2023-04-07

SADHNA RANI THAKUR

body2023
JUDGMENT : 1. Heard Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Avnish Kumar Srivastava, learned counsel for the applicant and Sri Brijesh Sahai, learned Senior Advocate assisted by Sri Bhavya Sahai, learned counsel for the opposite party no. 2. 2. By moving this application under Section 482 Cr.P.C. the applicant seeks to invoke the inherent jurisdiction of this court to quash the order dated 19.05.2017 passed by the Juvenile Justice Board, Agra in Misc. Application No. 109 of 2017 (arising out of Crime No. 131 of 2003) under Sections 147, 148, 149, 307, 302 IPC, Police Station Kotwali, District Meerut by which the Juvenile Justice Board, Agra declared the convict/O.P. No. 2 a juvenile. 3. As per facts of the case Sessions Trial Nos. 668, 669 and 671 of 2003, Case Crime No. 131 of 2003 and 134 of 2003 respectively under Sections 147, 148, 149, 307, 302 IPC and 25/27 Arms Act, Police Station Kotwali, District Meerut were decided by the trial court vide judgment dated 04.08.2007 and all the four accused persons were found guilty. The case was decided into capital punishment. Criminal Reference No. 21 of 2007 -State Vs. Khalid and others, was made to this court to confirm the capital punishment. The accused persons also filed Criminal Appeal No. 5169 of 2007 -Khalid and others Vs. State of U.P. before this court. Both the reference and criminal appeal were heard together by the Division Bench of this court. The reference was dismissed and the appeal was partly allowed vide judgment and order dated 05.09.2008. The death sentence was set aside and was commuted to life imprisonment i.e. imprisonment for whole life with this provision that the accused persons shall not be entitled to be considered for remission of sentence unless, they have undergone actual term of 20 years imprisonment including the period already undergone by them. The sentence of fine awarded to the appellants under Sections 302/149 IPC as well as sentence of imprisonment and fine awarded to them under Sections 307/149 and 148 IPC and the conviction of accused appellants Tahir and Moinuddin and the sentence awarded to them under Section 25 Arms Act were upheld. All the sentences of imprisonment were to run concurrently. The convict/opposite party no. 2 along with other co-accused persons was thereafter transferred to Central Jail, Agra to serve the sentence. 4. All the sentences of imprisonment were to run concurrently. The convict/opposite party no. 2 along with other co-accused persons was thereafter transferred to Central Jail, Agra to serve the sentence. 4. One Sister Sheeba Jose, a lawyer and human right activist, filed a Public Interest Litigation No. 855 of 2012 (Sister Sheeba Jose Vs. State of U.P. and others) before this Court for release of the prisoners, who may have been below 18 years of age on the date of commission of the offence and were detained in various district or Central Jail. For Agra, Central Jail a list of 18 prisoners was made for grant of such relief. This writ petition was decided by the division bench of this Court vide order dated 24.05.2012 and directions were issued to the District Judges, who were also the Chairpersons of their Legal Services Authorities, to see that the efficient lawyers were appointed for the purpose of providing legal aid to the prisoners, who were unable to engage private lawyers and who were mentioned in the list furnished by the State Government and described to be below 18 years in age on the date of commission of offence. The present applicant applied on 25.02.2017 (through Jail Superintendent, Central Jail, Agra) before the Secretary, District Legal Services Authority for providing him legal aid. On his application, the District Legal Services Authority appointed one Sri Pal Singh, Advocate for providing him legal aid and thereafter on behalf of the applicant, an application was moved on 06.04.2017 before the Juvenile Justice Board, Agra claiming therein that he was a juvenile at the time of incident. He was not literate and had no documentary evidence regarding his age, so his age may be determined by constituting a medical board. His medical was done by the medical board and on the basis of report of medical board dated 17.05.2017 the Principal Magistrate, Juvenile Justice Board, Agra vide order dated 19.05.2017 declared the convict/opposite party no. 2 a juvenile on the date of incident. This order dated 19.05.2017 is the subject matter of the present proceedings. 5. The opposite party no. 2 along with one co-accused filed a Writ Petition (Criminal) No. 155 of 2022 under Article 32 of the Constitution of India, before the Apex Court, which was disposed of vide order dated 06.09.2022 with the direction to this court to dispose of the Criminal Misc. 5. The opposite party no. 2 along with one co-accused filed a Writ Petition (Criminal) No. 155 of 2022 under Article 32 of the Constitution of India, before the Apex Court, which was disposed of vide order dated 06.09.2022 with the direction to this court to dispose of the Criminal Misc. Application U/S 482 Cr.P.C. No. 20368 of 2017 against the present accused and the Criminal Revision No. 2913 of 2019 filed by the co-accused, expeditiously and not later than six months. 6. After these directions of the Apex Court, the Application U/S 482 No. 20368 of 2017 against convict – opposite party no. 2 along with Criminal Revision No. 2913 of 2019 filed by the co-accused/convict for the first time were placed before this court on 22.03.2023. On this date, learned counsel for the applicant in the application under Section 482 Cr.P.C. above seeked time so that he may inform the counsel for the revisionist and accordingly date 28.03.2023 was fixed and on 28.03.2023 the arguments in the present Application U/S 482 No. 20368 of 2017 were heard. 7. The impugned order dated 19.05.2017 was assailed by the learned counsel for the applicant on the grounds that the judgment in Crime No. 131 of 2003 was passed on 04.08.2007 by the District Court, Meerut and only to undergo the sentence awarded therein the convict – opposite party no. 2 was lodged in Central Jail, Agra. The Principal Magistrate, Juvenile Justice Board, Agra had no jurisdiction to determine the age of the juvenile. Vide order dated 24.05.2012 the division bench of this Court in Criminal Writ – Public Interest Litigation No. 855 of 2012 directed the Juvenile Justice Board to determine the age of the person in question, after providing an opportunity to the prosecution and the complainant of being heard but the applicant was not given an opportunity of being heard. He was not given any notice by the Juvenile Justice Board, Agra, so he could not oppose the application of the opposite party no. 2 for declaring him juvenile. In fact, the opposite party no. 2 put before the Board wrong facts that he was illiterate, while on his statement under Section 313 Cr.P.C. on 16.05.2006 he had put in signatures this fact falsifies his claim of being illiterate. Further, it is argued that in his statement under Section 313 Cr.P.c. on 16.05.2006 the opposite party no. In fact, the opposite party no. 2 put before the Board wrong facts that he was illiterate, while on his statement under Section 313 Cr.P.C. on 16.05.2006 he had put in signatures this fact falsifies his claim of being illiterate. Further, it is argued that in his statement under Section 313 Cr.P.c. on 16.05.2006 the opposite party no. 2 has disclosed his age to be 21 years. Thus, on the date of incident in the year 2003 he could be said to be of 18 years of age. In the voter list of the year 2017 his age is mentioned as 41 years. Thus, in the year 2003 his age becomes 27 years. He had also executed two agreements to sale on 15.09.2000 and 20.09.2000 respectively and a power of attorney on 27.08.1998. All the documents were executed under his own signatures independently and not as a minor under guardianship of any other person. Thus, on the basis of above admissions he was major on the date of incident i.e. 07.06.2003, as a person cannot make the claim against his own admissions. Hence, the impugned order is prayed to be set aside. 8. This application of the applicant under Section 482 Cr.P.C. was opposed by the learned counsel for the opposite party no. 2 on the ground that as per Section 52 of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'Act') any person aggrieved by an order made by a competent authority under this Act may, within thirty days from the date of such order, prefer an appeal to the Court of Sessions. It was claimed that as a remedy was available to the applicant in the statute itself then he could not invoke the inherent jurisdiction of this court under Section 482 Cr.P.C. If the Act was silent about the remedy, only then the application under Section 482 Cr.P.C. could have been moved. 9. It is further submitted by the learned counsel for the opposite party no. 9. It is further submitted by the learned counsel for the opposite party no. 2 that by the same Juvenile Justice Board another co-accused was also declared juvenile vide order dated 22.04.2017 and against that order, though, the present applicant initially took the same recourse of filing the application under Section 482 Cr.P.C. No. 18718 of 2017 before this court, but later on as under the statue the remedy of appeal had been provided and that application was wrongly filed by the applicant. His application under Section 482 Cr.P.C. was dismissed and in the light of specific statutory provision under the Act the applicant filed an appeal against the order dated 22.04.2017. It was further argued by the learned counsel for the opposite party no. 2 that the learned counsel for the applicant, who happened to be the counsel of that another co-accused also, could not avail two different remedies regarding the same cause of action in the same matter in the two cases of two co-accused persons. It was also submitted that while as per Section 7A of the Act and Rule 12 of Rules, 2017 if the person is illiterate having no educational certificate or having no birth certificate issued by a corporation or municipal board or panchayat, the only recourse before him to get his age determined was to sought the medical opinion from a duly constituted medical board and that board would have to declare the age of juvenile or child and as is the case here that by moving an application the opposite party no. 2 got himself declared juvenile on the date of incident vide impugned order dated 19.05.2017 passed by the Principal Magistrate, Juvenile Justice Board, Agra on the basis of the medical report by medical board. It is further submitted that as the convict/opposite party no. 2 was minor on the date of incident so his admission, either in his statement under Section 313 Cr.P.C. or on the basis of other documents like agreement to sale or power of attorney cannot, be said to be of any importance being admission on the part of a minor. 10. 2 was minor on the date of incident so his admission, either in his statement under Section 313 Cr.P.C. or on the basis of other documents like agreement to sale or power of attorney cannot, be said to be of any importance being admission on the part of a minor. 10. Learned counsel for the applicant submitted in reply that though he had filed Application U/S 482 Cr.P.C. No. 18718 of 2017 in case of co-accused of this case, during pendency of that application he came to know about the release of that co-accused, so he had to withdraw that application under Section 482 Cr.P.C. and had to file an appeal before the District Judge, which was allowed by that court and the order in favour of that co-accused declaring him to be juvenile on the date of incident was set aside. But in the present case when this application under Section 482 Cr.P.C. was moved the accused had not been released from the judicial custody, so he proceeded with the present application under Section 482 Cr.P.C. in case of the present accused/convict. 11. If we go through the record, it is found that the present accused and co-accused both were ordered to be released on bail by the Apex Court vide order dated 17.05.2022 passed in Writ Petition (Criminal) No. 155 of 2022 above. Thus, as both the co-accused persons were released by the same order and that too in the year 2022 the argument of the learned counsel for the applicant that at the time of withdrawal application u/s 482 No. 18718 of 2017, co-accused, the opposite party no. 2 in that application, had been released, so they had to withdraw that application under Section 482 Cr.P.C. on 11.10.2017 with a prayer to avail appropriate legal remedy against the impugned order, becomes wrong. 12. Otherwise also the learned counsel for the applicant failed to show any provision that if a person is released on bail, the application against that person moved under Section 482 Cr.P.C., becomes infructuous. 13. Now it is to be seen that whether in the presence of remedy provided under the statute/clear provision of appeal, against the impugned order the application under Section 482 Cr.P.C. of the present applicant is maintainable? 14. It is apposite to reproduce Section 482 Cr.P.C. which is as under:- 482. Saving of inherent powers of High Court. 13. Now it is to be seen that whether in the presence of remedy provided under the statute/clear provision of appeal, against the impugned order the application under Section 482 Cr.P.C. of the present applicant is maintainable? 14. It is apposite to reproduce Section 482 Cr.P.C. which is as under:- 482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 15. As per this section, the only purpose to proceed under Section 482 Cr.P.C. is to prevent the abuse of the process of any Court and otherwise to secure ends of justice. Thus, in the section itself, there is no bar that if a simultaneous/equally efficacious remedy is available to a person in the statute itself, he cannot avail the remedy provided under Section 482 Cr.P.C. 16. If we go through the order passed in Application U/S 482 No. 18718 of 2017 dated 11.10.2017 of the coordinate bench of this court, in case of co-accused of the present case, that application under Section 482 Cr.P.C. of the applicant was not rejected on the ground that equally efficacious relief is available to the applicant in the statute itself nor that application under Section 482 Cr.P.C. was converted into appeal by this court, as submitted by the learned counsel for the opposite party no. 2, rather the applicant himself did not press his application and prayed to withdraw that application with liberty to avail appropriate legal remedy and on the basis of such prayer only, the coordinate bench of this court passed order dated 11.10.2017 and permitted the applicant to withdraw his application under Section 482 Cr.P.C. No. 18718 of 2017 with liberty to avail appropriate legal remedy. 17. Learned counsel for the opposite party no. 2 could not place before the court any law/judgement that if a person is having equally efficacious relief he cannot avail the remedy under Section 482 Cr.P.C. 18. The Apex Court in judgment Prabhu Chawla Vs. 17. Learned counsel for the opposite party no. 2 could not place before the court any law/judgement that if a person is having equally efficacious relief he cannot avail the remedy under Section 482 Cr.P.C. 18. The Apex Court in judgment Prabhu Chawla Vs. State of Rajasthan and another (2016) 16 Supreme Court Cases 30, held that there is no total ban on exercise of inherent power where abuse of process of court or other extraordinary situation warrants exercise of inherent jurisdiction. Availability of alternative remedy of Criminal Revision under Section 397 by itself cannot be a good ground to dismiss an application under Section 482 Cr.P.C. 19. In Dhariwal Tobacco Products Limited and others Vs. State of Maharashtra and another, (2009) 2 Supreme Court Cases 370, the Apex Court held that availability of alternative remedy of filing revision under Section 397 would not be a ground to dismiss the application under Section 482 Cr.P.C. 20. Thus, in the opinion of the court, the argument of learned counsel for the opposite party no. 2 in this regard has not force. If the court considers that to prevent the abuse of the process of any court or otherwise to secure the ends of justice it is appropriate the court can very well entertain the application under Section 482 Cr.P.C. 21. It is submitted by the learned counsel for the applicant that vide impugned order dated 19.05.2017 the Principal Magistrate, Juvenile Justice Board, Agra declared the opposite party no. 2 a juvenile, on the date of incident. But while deciding the application of the opposite party no. 2 to declare him juvenile, the applicant was not given a chance of being heard. No notice was issued to him by the Principal Magistrate, Juvenile Justice Board. The attention of the court is drawn towards the judgment of division bench of this court dated 24.05.2012 passed in Criminal Writ – Public Interest Litigation No. 855 of 2012 whereby an order was made for the Principal Magistrate, Juvenile Justice Board for determining the age of the victim, there was a clear direction that the prosecution and the complainant would also be given an opportunity to examine their own witness and to cross-examine the witnesses, who have been examined on behalf of the accused and for that purpose notices of the proceedings before Juvenile Justice Board shall be served on the complainant or prosecution. Thus, in the order dated 24.05.2012 of the division bench of this court it was a mandatory condition that before determining the age of the accused notices shall compulsorily be served on the complainant and the complainant had to be given liberty to examine his own witnesses and cross-examine the witnesses of the accused. But the perusal of the impugned order dated 19.05.2017 clearly reveals that the complainant was neither served with a notice nor was given an opportunity of being heard or to oppose the application of the accused for declaring him juvenile on the date of incident. Thus, the complainant or his counsel could not appear before the Principal Magistrate, Juvenile Justice Board to cross-examine the accused witnesses and examine their own witnesses and raise any objection on the medical report filed by the medical board. 22. As the Principal Magistrate, Juvenile Justice Board, Agra in compliance of order dated 24.05.2012 passed by the division bench of this court, did not issue notice for the complainant and as a result did not provide him an opportunity of being heard or adduce his evidence or cross-examine the witnesses, it was a blunder on the part of the Principal Magistrate, Juvenile Justice Board, Agra. Thus, the order dated 19.05.2017 is found to be against the specific directions of the Division Bench of this court given by order dated 24.05.2012. 23. So far as the argument of learned counsel for the applicant that the Juvenile Justice Board, Agra had no jurisdiction to determine the age of the accused as the matter belonged to District Meerut is concerned it was after conviction from Meerut District Court only that the accused was lodged in Central Jail, Agra and this fact does not give authority to Juvenile Justice Board, Agra to hear the application of age determination of the accused. 24. In this regard, para-2 of Section 7A(1) is apposite to mention here:- [7A. Procedure to be followed when claim of juvenility is raised before any court.-(1) …..... 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. 25. In the above provision, the word 'any court' means the trial court/High Court/Apex Court. It does not mean that any court in U.P. wherever a person wants his application to be moved. As the case belonged to District Meerut and it was decided by the District Court Meerut, the District Court, Meerut/Principal Magistrate, Juvenile Justice Board, Meerut only had jurisdiction to decide the question of juvenility of the applicant. Thus, the order dated 22.04.2017 passed by the Principal Magistrate, Juvenile Justice Board, Agra was an order passed without jurisdiction. 26. The order dated 19.05.2017 passed by the Principal Magistrate, Juvenile Justice Board, Agra in Misc. Application No. 109 of 2017 (State Vs. Munna) arising out of Crime No. 131 of 2003, under Sections 147, 148, 149, 307, 302 IPC, Police Station Kotwali, District Meerut being without jurisdiction and passed without issuing notice to the applicant, is hereby quashed. 27. The application under Section 482 Cr.P.C. is, thus, allowed.