Delhi District Court
Gaurav vs State on 29 October, 2024
IN THE COURT OF SH. VIPIN KHARB:
ADDITIONAL SESSIONS JUDGE-07: SOUTH EAST,
SAKET COURTS: NEW DELHI
Crl. Revision No.: 625/2024
Gaurav Vs State
ORDER
29.10.2024
1. This criminal revision petition u/s 438 of the BNSS 2023 has been filed by the revisionist against the order dated 10.01.2024 passed by the court of Ms. Twinkle Chawla, Ld. MM-05, South East District, Saket Courts, New Delhi, whereby, application in DD No.22A dated 30.08.2023 titled "State Vs. Gaurav", PS Sarita Vihar filed by the revisionist was dismissed.
2. By filing the present revision petition, revisionist seeks to set aside and quash the impugned order dated 10.01.2024 passed by the Ld. Trial Court.
3. Brief facts of the case are that both the parents of the revisionist are illiterate and due to that reason the Date of Birth of the Revisionist was found different in his documents and school certificate. As per educational certificate issued by Primary Vidhyalaya, Bhadori Vikas Khand, Akrabad District, Aligarh, UDISE Code-09120205101 where the revisionist studied in Class-1, his DOB is mentioned as 01.09.2006. According to the age mentioned in the above document, the case of revisionist should be tried before the JJB-III, Delhi Gate, New Delhi as the Ld. Trial Court has no territorial jurisdiction to entertain the present case. The grounds for filing the present revision petition are that the Ld. Trial Court miserably failed to appreciate the letter issued by Principal of the Revisionist's first school at Akrabad, Aligarh, U.P and it is prayed that the impugned order be set aside.
Cr Rev no.625/2024 Page 1 of 74. During arguments, Ld. counsel for the revisionist stated that they wanted to bring the document on the record but the same was denied by the Ld. Trial Court. At the time, when the Ld. JJ Board declared revisionist as major vide order dated 16.09.2023, they were not having the above mentioned document in their custody; therefore they have filed the application dated 25.09.2023 before Ld. Trial Court to bring the above mentioned document on record. On seeking clarification regarding filing of appeal against the order dated 16.09.2023 passed by Ld. JJ Board, counsel submitted that he has not filed any appeal and have just moved application dated 25.09.2023 before the Ld. Trial Court.
5. In the application dated 25.09.2023, it is only mentioned that applicant wants to bring age proof document of his accused son Gaurav on the record but in substance he wants to get second age enquiry done by the Ld. Trial Court without challenging the age determination done by the Ld. JJ Board vide order dated 16.09.2023.
6. Difference between enquiry done by a Court in which case is pending trial and age determination done by the JJ Board is succinctly described by Hon'ble Supreme Court of India in case title as "Rishi Pal Singh Solanki Vs. State of U.P.", 2022 8 SCC 602, at para 29 which is reproduced hereinbelow:-
"Para 29. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:-
(i) A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim.
It can also be raised for the first time before this Court.
(ii) An application claiming juvenility could be made either before the Court or the JJ Board.
(iia) When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the Cr Rev no.625/2024 Page 2 of 7 JJ Act, 2015 applies.
(iib) If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.
(iic) When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).
(iii) That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.
(iv) The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.
(v) That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance".
7. So, degree of proof required in the enquiry done by a Court is less than Cr Rev no.625/2024 Page 3 of 7 the degree of proof required in a proceeding before JJ Board and when a age is determined by the JJ Board that age shall be deemed to be true age of a person u/s 94(3) of the JJ Act, 2015. The age determination of revisionist Gaurav has already been done by the JJ Board-II, Delhi Gate, Delhi on 16.09.2023 and his age was found to be more than 18 years on the date of commission of the offence. Now, in case revisionist was not satisfied with the age determination done by JJ Board-II then he has the remedy of filing appeal u/s 101 of the JJ Act, 2015, assailing the order dated 16.09.2023, the relevant provisin is reproduced herein in below:-
Section 101 Appeals "(1) .......Subject to the provisions of this Act, any person aggrieved by an order made by the Committee or the Board under this Act may, within thirty days from the date of such order, prefer an appeal to the Children's Court, except for decisions by the Committee related to Foster Care and Sponsorship After Care for which the appeal shall lie with the District Magistrate:
PROVIDED that the Court of Sessions, or the District Magistrate, as the case may be, may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time and such appeal shall be decided within a period of thirty days.
8. The remedy against order dated 16.09.2023 through which revisionist was declared a major was to be file an appeal before the Children's Court but same is not availed by the revisionist. Even if any new document came to the knowledge of applicant then it could have been filed or brought to the notice of Appellate Court in the appeal filed u/s 101 of JJ Act, 2015 but no such appeal has been filed by the revisionist. Revisionist has only file the application dated 25.09.2023 before the Ld. Trial Court. As Ld. Trial Court has no jurisdiction to sit in appeal against the order of JJ Board, therefore, Ld. Trial Court has correctly rejected the application dated 25.09.2023.
9. During arguments, Ld. Counsel also raised objection to the observation Cr Rev no.625/2024 Page 4 of 7 made by the Ld. Trial Court while dismissing their application that court does not have any power to undertake another age enquiry for the same accused. The relevant portion of the impugned order dated 10.08.2024 which is reproduced hereinbelow:
" Since a categorical finding as to age of the accused Gaurav has been given by Principal Magistrate, JJB-II, Delhi Gate in order dated 16.09.2023, this court has no power to undertake another age enquiry for the same accused".
10. It is no more Res-Integra that the claim of juvenility can be raised at any stage of the trial and even after the conviction, if same has not been raised before. But here situation is different as in the present case a detailed process of age determination as provided u/s 94 of the JJ Act, 2015 has already been conducted by the JJ Board-II, Delhi Gate. There is no requirement of conducting another age enquiry by the Ld. Trial Court just after a week of determination of age done by the JJ Board, as discussed above, a higher stand of proof is required and considered in determining age by JJ Board as compared to age enquiry done by a Court.
11. When a proper procedure has been provided by the statute i.e. appeal u/s 101 JJ Act, 2015 in the present case, then same should have been followed or exercised by the applicant rather than filing the application dated 23.09.2023 before the Ld. Trial Court.
12. It is a settled proposition of law that the revisional jurisdiction of the court cannot be equated with appellate jurisdiction. In its revisional jurisdiction, the Court can examine the records of any proceedings for satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. There has to be perversity or unreasonableness, complete misreading of records leading to the court taking into consideration irrelevant material while ignoring relevant material, when alone the Court would Cr Rev no.625/2024 Page 5 of 7 exercise its revisional jurisdiction to set aside such order/judgment.
13. The Hon'ble Supreme Court in Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke & Others, 2015 (3) SCC 123, has held as under :-
"14. ......... Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction........"
14. It is settled law that unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. Revisional power of the court under section 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the findings of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional Cr Rev no.625/2024 Page 6 of 7 jurisdiction.
15. It is to be kept in mind that revision jurisdiction is normally to be exercised in exceptional cases where there is a glaring defect in procedure or there is manifest error of law and consequently there has been a flagrant miscarriage of justice. The order passed by Ld. MM is a speaking order. If impugned order is analyzed in light of scope of section 397/399 Cr.P.C, no wrong, illegality, impropriety or irregularity is noticed therein.
16. Accordingly, in view of the above observations, the present revision petition is dismissed. There is no illegality and infirmity in the order dated 10.01.2024 passed by Ld. Trial Court.
17. Copy of this order be sent to Ld. Trial Court alongwith TCR.
18. Revision file be consigned to Record Room after due compliance.
Digitally signedVipin by Vipin Kharb Date: Kharb 2024.10.29 14:48:31 +0530 Announced in open Court today (Vipin Kharb) on 29.10.2024 Additional Sessions Judge-07 South-East, Saket Courts, New Delhi Cr Rev no.625/2024 Page 7 of 7