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2025 DIGILAW 187 (SC)

Onkar Nath Singh @ Sheru Singh v. State Of Bihar

2025-01-08

MANMOHAN, MANOJ MISRA

body2025
ORDER 1. Leave granted. 2. This appeal arises from a judgment and order of the High Court of Judicature at Patna[The High Court] dated 07.02.2020 in Death Reference No.3/2016 and Criminal Appeal (DB) No.587/2016. 3. By the order impugned, the High Court had set aside the order of conviction and sentence dated 12.05.2016 and 16.05.2016 respectively and remanded the matter to the Trial Court with the following direction: "39. Considering the totality of the fact situation, we are of the considered view that the judgment of conviction dated 12th May, 2016 and the order of sentence dated 16.05.2016 cannot be sustained. It is accordingly quashed. However, the criminal jurisprudence is not designated to extend the benefit to the accused and as such, the defect in the trial cannot obliterate the criminal liability of the accused. Fair trial does not mean that the accused should be extended the benefit of lapses in trial. Balancing equity of situation warrants that the matter be remanded to the Sessions Court, Buxar for fresh adjudication on the following issues: (a) The Session Court has to endeavour to ascertain the issue of juvenility of the appellant by the process of Medical Board of at least Five expert doctors of PMCH. (b) The trial court is required to formulate the relevant question in terms of the principle laid down by the Apex Court for examination of the accused under Section 313 of the Cr.P.C. by confronting the appellant with all the adverse materials specifically. 40. After examining the issue of juvenile; and fresh examination of the accused under section 313 of the Code of Criminal Procedure, the trial court will pass appropriate judgment as to the guilt and sentence without being influenced by outcome of Criminal Appeal (DB) No.1000 of 2013; Criminal Appeal (DB) No.1068 of 2013 and Criminal Appeal (DB) No.17 of 2014. The fresh decision on remand should be taken by the Sessions Court at the earliest preferably within a period of four months from today." 4. Prior to the aforesaid final order, during the pendency of the aforesaid appeal, through Interlocutory Application No.1804 of 2016, the appellant had set up a plea of juvenility by filing certain certificates. This plea was rejected vide order dated 19.07.2017. While rejecting the aforesaid plea taken by the appellant, the High Court had doubted the veracity of the testimonials relied upon by the appellant. 5. This plea was rejected vide order dated 19.07.2017. While rejecting the aforesaid plea taken by the appellant, the High Court had doubted the veracity of the testimonials relied upon by the appellant. 5. Before us a counter affidavit has been filed on behalf of the respondent-State stating that pursuant to the order of remand, which is impugned in this appeal, the Trial Court vide judgment dated 12.01.2021 has again convicted the appellant and vide order dated 13.01.2021 has passed a fresh sentence. 6. It is not in dispute that aggrieved by the order of conviction and sentence dated 12.01.2021/13.01.2021, the appellant has already preferred an appeal before the High Court which is pending. 7. Based on the above, the learned counsel for the State submits that this appeal is rendered infructuous as the plea of juvenility and the plea questioning the correctness of the order of conviction/sentence can be taken by the appellant before the High Court. 8. In response to the above submission, the learned counsel for the appellant submits that the High Court while remanding the matter to the Trial Court had directed that the plea of juvenility shall be determined only on the basis of medical reports which means that the testimonials submitted by the appellant while raising the plea of juvenility will have to be excluded from consideration. The apprehension of the appellant's counsel is that if those certificates are excluded from consideration, then there may be no proper determination of the plea of juvenility because while considering the plea of juvenility, the Court has to first consider the academic records including birth certificate, etc. and thereafter, it may take the medical opinion into account. 9. It has also been argued on behalf of the appellant that since the order dated 19.07.2017 rejecting the plea of juvenility was an interlocutory order, the correctness of the said order could well be challenged by the appellant while impugning the final order in the appeal and therefore, this appeal is not infructuous. 10. Per Contra, the learned counsel for the State submitted that the High Court has discarded the certificate relied by the appellant as a bogus document and, therefore, the High Court was justified in directing that the plea of juvenility should be determined only on the basis of medical reports. 11. 10. Per Contra, the learned counsel for the State submitted that the High Court has discarded the certificate relied by the appellant as a bogus document and, therefore, the High Court was justified in directing that the plea of juvenility should be determined only on the basis of medical reports. 11. In response to the aforesaid submission, the learned counsel for the appellant submitted that the High Court was under an obligation to hold an age determination enquiry by taking oral evidence in proof of the testimonials/certificate, which has not been done. 12. On a specific query by us to the learned counsel for the State as to whether an age determination enquiry as contemplated by the concerned Act was carried out or not, the learned counsel conceded that from the record it does not appear that such an enquiry was conducted. 13. To satisfy ourselves, we perused the record as also the order dated 19.07.2017 by which the application submitted by the appellant raising plea of juvenility was rejected. Despite our best efforts we could not find any material to indicate that statement of witnesses was recorded in proof of the certificate/testimonial relied by the appellant while setting up his claim of juvenility. 14. The Act mandates holding of an age determination enquiry. Thus, the order dated 19.07.2017 to the extent it discards the testimonial without an age determination enquiry suffers from an error of law. Consequently, the direction in the order impugned limiting the scope of enquiry to medical reports is liable to be modified. 15. However, as the impugned order has already been acted upon, as noticed above, in our view, the ends of justice would be sub-served if we dispose of this appeal by directing the High Court to consider the plea of juvenility afresh after an age determination enquiry as contemplated by the Juvenile Justice (Care and Protection of Children) Act, 2015 or Juvenile Justice (Care and Protection of Children Act, 2000, as may be applicable. It is clarified that in the age determination enquiry the veracity /admissibility of the certificate/testimonial relied upon by the appellant to prove his date of birth shall also be tested. It is clarified that in the age determination enquiry the veracity /admissibility of the certificate/testimonial relied upon by the appellant to prove his date of birth shall also be tested. It is further clarified that it will be open to the High Court to itself conduct an inquiry or to remit the enquiry to the Juvenile Justice Board, or a Court not below the rank of an Additional District Judge. 16. This appeal is, therefore, disposed of in the aforesaid terms. 17. It is made clear that we have not expressed any opinion either on the merits of the order passed by the High Court dated 07.02.2020 or on the veracity/admissibility of the certificate /testimonial relied by the appellant. The veracity/admissibility of the certificate/testimonial shall be duly tested in the inquiry, in accordance with law. 18. Pending application(s), if any, stand disposed of.