Orissa High Court
Nanda Alias Anant Charan Behra vs State Of Orissa on 18 January, 2008
Equivalent citations: 2008CRILJ1686, 2008 CRI. L. J. 1686, (2008) 64 ALLINDCAS 839 (ORI) (2008) 39 OCR 890, (2008) 39 OCR 890
Author: I. Mahanty
Bench: I. Mahanty
JUDGMENT I. Mahanty, J.
1. In course of hearing of this appeal, Mr. Rath, learned Counsel appearing for the appellant raises a contention that the appellant was a child in terms of Sections 2(d) of the Orissa Children Act, 1992 at the time of the alleged commission of offence.
2. In support of such contention, Sri Rath drew my attention to a certificate granted by the Headmaster of Madhuban High School, Madhuban Hat in the district of Cuttack which certifies that the date of birth of the appellant who was a student of that High School is 6th June, 1969. He further submits that the said certificate was acted upon by the trial Court while disposing of the bail application of the appellant pending trial in Crl. Misc. Case No. 2 of 1985 by his order dated 4-2-1985 wherein the learned Asst. Sessions Judge on consideration of the certificate produced by the appellant about his age granted bail to the appellant during the pendency of the trial.
3. The appellant was initially acquitted by "the judgment dated 13-3-1986 by the Asstt. Sessions Judge as per the provision of Section 235 of Cr.P.C. However, the informant being aggrieved by the order of acquittal preferred Criminal Revision No. 298 of 1986 before this Court and by the judgment dated 14-8-1990 that Criminal Revision was allowed and this Court found that the order of acquittal passed by the trial Court is the result of faulty reasoning and lack of judicial approach and found the order of acquittal not sustainable in law. Accordingly, this Court remanded the matter to the trial Court with a direction to dispose of the case in accordance with law after giving full opportunity both to the prosecution and defence to argue afresh before him only on the basis of evidence already adduced in the case but neither party be allowed to adduce further evidence in the case.
4. Pursuant to the order passed in Criminal Revision as noted hereinabove, the appellant filed a petition before the Asstt. Sessions Judge on 25-5-1991, inter alia, stating as follows:
3. That keeping in view the direction in paragraph 20 of the judgment of petitioner has no right to adduce evidence about the merit of the case. It is respectfully submitted that there is no restriction to adduce evidence about the age of the petitioner to attract the provisions of Section 23 of Orissa Children Act, 1982 (Orissa Act 22 of 1982) which was published in the Orissa Gazette Extraordinary. No. 1713 dated 30-11-1982.
4. That after the petitioner was taken to custody in connection with this case he filed a petition under Section 437 Criminal Procedure Code in the Court of the Sub-divisional Judicial Magistrate, Jaipur and that petition was rejected.
That the petitioner filed Criminal Misc. Case No. 2 of 1985 i.e. a petition under Section 439, Criminal Procedure Code. 1973 in the Court of the Assistant Sessions Judge, Jajpur and that petition was registered as Criminal Misc. case No. 2 of 1985.
That a certificate granted by the Headmaster, Madhuban High School, at/P.O. Madhuban Hat, via Kabirpur, Dist. Cuttack was filed on behalf of the petitioner wherein the Headmaster certified that the date of birth of the petitioner who was a student of that High School in the year 1985 is 6th, June 1985.
That the learned Assistant Sessions Judge accepted the certificate and arrived at a finding as quoted below while disposing of Criminal Misc. Case No. 2 of 1985 on 4-2-1985:
On the other hand the certificate obtained from the Headmaster of Madhuban High School where the accused petitioner is a student speak about the age of the petitioner who is aged about 15. I do not therefore feel it appropriate to put a tender aged boy in jail custody indefinitely for the whims of the prosecuting agency.
Hence the bail petition is allowed. Let the accused be enlarged on furnishing a bail bond of Rs. 3,000/- with one surety for the like amount to the satisfaction of the S.D.J.M. Jajpur.
5. That there is reference to this order dated 5-2-1985 passed in Criminal Misc. Case No. 2 of 1985, Court of the Assistant Sessions Judge, Jajpur in G. R. Case No. 70 of 1985, Court of the S.D.J.M. Jajpur out of which this Sessions trial arises but the entire order is not available in that record.
That the petitioner filed herewith:
(a) Certified copy of the order dated 2-2-1985 and 4-2-1985 passed in Criminal Misc. Case No. 2 of 1985, Court of the Assistant Sessions Judge, Jajpur for consideration to arrive at a finding about the age of the petitioner on 30-1-1985, which is as per prosecution case, the alleged date of occurrence.
6. That the petitioner also filed a certified copy of the certificate dated 4-2-1985 issued by the Headmaster, Madhuban High School, which has been referred to by the learned Assistant Sessions Judge in order dated 4-2-1985. The certified copy itself indicates that the original certificate was filed in Criminal Misc. No. 2 of 1985.
7. That the petitioner passed High School Certificate Examination in the year 1987 as a student of Madhuban High School, Madhuban Hat. As per that certificate the date of birth of the petitioner is 6th June, 1969. A xerox copy of that certificate is filed along with this petition. The petitioner is ready lo produce the original certificate today for reference.
8. The said petition of the appellant came to be rejected by the learned Assistant Sessions Judge by his order dated 25-5-1991 which reads as follows:
Accused present, Addl. P.P. is also present. Advocate for the accused files a petition to accept the certified copy of order in Crl. Misc. Case No. 2/85, certified copy dated 16-3-1985 issued by the Headmaster and certificate issued by Board of Secondary Education, Orissa and to consider the same in arriving at regarding age of the accused. Heard, in view of specific direction given by His Lordship in Crl. Revision No. 298/86, this Court is precluded from allowing any additional evidence in this case. Since the age of the accused has nothing to do with the merit of the present case and in view of the direction of the Hon'ble Court such documents cannot be accepted at this stage. Any document pointing to the age of the accused can be considered. If there would be any occasion for hearing on the question of sentence. Heard arguments from both the sides. Call on 27-5-1991 for judgment. Accused as before.
Thereafter, the learned Addl. Sessions Judge, ultimately passed the impugned judgment dated 27-5-1991.
9. Without entering into the merit of the present appeal, Sri Rath, learned Counsel "for the appellant has raised an initial issue to the effect that the order of the learned Addl. Sessions Judge dated 25-5-1991 refusing the appellant an opportunity to lead evidence on the question of his age on the date of occurrence is clearly a violation of mandatory requirement of law. He contends that in spite of direction of this Court in the Criminal Revision referred to above for not allowing either party to lead evidence in the case, yet, the said direction should have been considered only as limiting either party to lead evidence on the merit of the case and not in the matter of jurisdiction and procedure. He relied upon various judgments of the Apex Court and in particular, in the case of Bhola Bhagat v. State of Bihar wherein the Hon'ble Supreme Court has laid down the principle that by virtue of the enactment of Bihar Children Act (which is similar to the Orissa Children Act), an obligation has been cast upon a Court where such a plea is raised, having regard to the beneficial nature of the socially oriented legislation, that the issue should be examined with great care. This obviously does not mean that a person who is not entitled to the said benefit should be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit. Each case has to be considered on the basis of the materials brought on record.
10. The said judgment has been affirmed by various subsequent judgment of the Apex Court including in the case of Rabinder Singh Gorkhi v. State of U.P. in which Justice S.B. Sinha, speaking on behalf of the Bench declared that determination of the date of birth of a person before a Court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. As such the date of birth has to be determined on the basis of the materials on record.
The Hon'ble Supreme Court in a subsequent decision in the case of Jitendra Ram alias Jitu v. State of Jharkhand Justice S.B. Sinha has directed that where the determination of the age of the appellant as on the date of the commission of the offence should be done afresh by the learned Sessions fudge.
11. Learned Counsel for the State, on the other hand, submitted that this aspect of the submission made on behalf of the appellant ought not to be entertained since in the earlier Criminal Revision arising out of the self-same G.R. Case, this Court had specifically directed that neither party should be allowed to adduce any further evidence in the case, the trial Court had committed no illegality in any manner by passing the order dated 25-5-1991 refusing to permit the appellant to adduce evidence on the question of his age.
12. I have considered the rival contentions of both the parties in the present case and without entering into the merit of the case at hand, as laid down by the Apex Court, it is the statutory obligation of the trial Court, where the plea of juvenile is raised to adjudicate the said issue afresh. There was an impediment before the trial Court not to entertain any evidence adduced by the appellant inasmuch as this Court by the Revisional Order dated 14-8-1990 remanded the matter to the trial Court for disposal in accordance with law. Although there was a direction not to permit either party to lead further evidence in the proceedings yet, the said direction must be construed to be limited to evidence vis-a-vis merits of the rival claims. In other words, I am of the view that while both the parties could not be permitted to lead evidence on merits of the case, yet, since the trial Court was required to act in accordance with law, the said obligation to permit evidence of age was to in accordance with the Orissa Children Act, 1982. Once the accused-appellant has raised the plea of age, it was incumbent upon the trial Court to determine the age before proceeding further in the matter.
13. In view of the circumstances narrated herein above, I am of the view that since the alleged occurrence took place on 30-1-1985 i.e. 22 years ago, in the interest of complete justice, I direct the Assistant Sessions Judge, Jajpur to determine the age of the accused appellant as on the date of occurrence by affording an opportunity to the learned Counsel for the accused to lead any evidence on this issue and/or by relying upon any evidence already on record. Accordingly, the registry is directed to send back the lower Court record to the Assistant Sessions Judge, Jajpur along with the a copy of this order for the purpose of determining the age of the appellant on the date of occurrence. After determination of the age, a report be submitted to this Court by the Assistant Sessions Judge for consideration in the present appeal. Learned Assistant Sessions Judge is directed to do well to complete the entire exercise within a period of three months from the date of receipt of the L.C.R. in accordance with the directions contained in this order. After the report is prepared, the same along with the L.C.R. again be sent back to this Court for consideration the present appeal.