Allahabad High Court
Manoj Kumar vs State Of U.P. And Another on 29 November, 2019
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 79 Case :- CRIMINAL REVISION No. - 4460 of 2018 Revisionist :- Manoj Kumar Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Ishwar Chandra Tyagi,Nirvikar Gupta Counsel for Opposite Party :- G.A. Hon'ble Ajit Singh, J.
This revision has been filed with a prayer to quash the impugned order dated 20.10.2018 passed by Special Judge (Gangster Act)/Addl. Sessions Judge, court no. 5, Saharanpur in S.T. No. 307A/2001 (State vs. Manoj), arising out of Case Crime no. 347 of 2000, under Section 2/3 U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, P.S. Kotwali Nagar, district-Saharanpur.
The brief facts of the case are that the revisionist was named in the F.I.R. lodged by the opposite party no. 2 on 5.11.2000, which was registered as Case Crime no. 347 of 2000, under Section 2/3 of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, (hereinafter referred to as the 'Gangster Act'), P.S. Kotwali Nagar, district-Saharanpur. As per the allegations of FIR, there is a gang of five persons namely, Liyakat, Ali Hasan, Mehboob, Manoj Kumar and Rajiv, who were involved in anti-social activities, under Section 2/3 of the Gangster Act. The criminal antecedents of the persons have also been categorically mentioned, which reads as under:
1. Liyakat-Case Crime no. 184 of 2000, under Sections 36, 4A, 368 and 120B I.P.C., P.S. Kotwali Nagar, district-Saharanpur and Case Crime no. 99 of 1991, under Section 392 I.P.C., P.S. Gangoh, Case Crime no. 88 of 1996, under Section 302 I.P.C., P.S. Gangoh, Case Crime no. 130 of 1998, under Section 25/ Arms Act, P.S. Gangoh, Case Crime no. 159 of 1988, under Sections 395 and 412 I.P.C., P.S. Jhijahana, district-Muzaffar Nagar and Case Crime no. 66 of 1998, under Sections 324 and 504 I.P.C., P.S. Nakud.
2. Ali Hasan-Case Crime no. 184 of 2000, under Sections 364A, 368 and 120B I.P.C., P.S. Kotwali Nagar, district-Saharanpur.
3. Mehboob Ali-Case Crime no. 184 of 2000, under Sections 36, 4A, 368 and 120B I.P.C., P.S. Kotwali Nagar, district-Saharanpur and Case Crime no. 66 of 1998, under Sections 324 and 504 I.P.C., P.S. Nakud.
4. Manoj Kumar-Case Crime no. 184 of 2000, under Sections 364-A, 368 and 120B I.P.C., P.S. Kotwali Nagar, district-Saharanpur.
5. Rajiv-Case Crime no. 184 of 2000, under Sections 36, 4A, 368 and 120B I.P.C., P.S. Kotwali Nagar, district-Saharanpur.
A gang chart of the same has also been annexed as Annexure-3.
Heard Sri Nirvikar Gupta, Sri Ishwar Chandra Tyagi, learned counsel for the revisionist and learned A.G.A. for the State.
The argument of the learned counsel for the revisionist is that the revisionist has been falsely implicated in Case Crime no. 184 of 2000, under Sections 364-A, 368 and 120B I.P.C. and on the basis of Case Crime no. 184 of 2000 the revisionist was nominated illegally in Case Crime no. 347 of 2000, under Section 2/3 U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, P.S. Kotwali Nagar, district-Saharanpur along with accused persons. The opposite party no. 2 lodged the First Information Report, showing the revisionist as a member of the Gang.
He further submitted that when the Case Crime no. 184 of 2000 was allegedly shown committed by the revisionist at that time he was juvenile and protection under Juvenile Justice (Care and Protection of Children) Act, 2000 should be given to the revisionist.
He also submitted that the incident in question took place on 1.7.2000, the date of birth of Manoj Kumar was 18.9.1982 as per his school certificate. By this logic, on the date of incident, his age was 17 years 9 months and 13 days. However, the learned Sessions Judge has refused to give him the benefit of Juvenile Justice Act by holding that provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 are not applicable in the case of revisionist as when the FIR of Gangster Act was lodged, on that date the revisionist was not juvenile.
It was also submitted by learned counsel for the appellant that the Trial Judge has wrongly interpreted the provisions of Juvenile Justice Act, 2000. A reading of Sections 20 along with 2-l, 2-k and 7-a of Juvenile Justice Act would show that the said Act has been given a retrospective effect and that the accused person who has crossed the age of 18 years by 1.4.2001, would be considered juvenile as on the date on which the offence was committed, he was under 18 years of age. For this, he placed reliance on the decision in Pratap Singh Vs. State of Jharkhand, 2005-Crimes (Sc)-1-286, Hari Ram v. State of Rajasthan & Anr., JT 2009 (8) SC 47, Rishabh Awasthi vs. State of U.P [2107(4) AJD 453 (DB)] Learned counsel for the revisionist further referred to Sections 1(4), 17, 19 and 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which extends ample protection and benefit to a juvenile, submitting that the revisionist has been implicated in Gangster Act illegally showing him major on the basis of a single case, which took place when the revisionist was juvenile.
Per contra, learned AGA opposed the prayer for quashing the impugned order and submitted that according to the Gang Chart the revisionist has a criminal history of Case Crime no. 184 of 2000, under Sections 364A, 368 and 120B I.P.C., P.S. Kotwali Nagar, district-Saharanpur., incident of that case took place on 1.7.2000, the date of birth of the revisionist is 18.9.1982 and as such on the date of lodging of the F.I.R. under the Gangsters Act, the age of the revisionist was above 18 years but the revisionist is claiming himself that the First Information Report of Case Crime no. 184 of 2000, under Sections 364A, 368 and 120B I.P.C. was lodged on 1.7.2000 and on the basis of that crime, FIR under the Gangsters Act was registered and as such he was not minor on that date. He further submitted that on the date of lodging of the FIR under the Gangsters Act, the age of the revisionist was more than 18 years and further looking to the amendments made in the Juvenile Justice Act in the year 2000, the revisionist was not juvenile on the date of incident, in view of the above, the instant criminal revision being devoid of merit and is liable to be rejected.
This Court has considered the submissions advanced by learned counsel for the parties and perused the record. It is not disputed that the revisionist has been declared juvenile in Case Crime No. 184 of 2000, under Sections 364A, 368 and 120B I.P.C., P.S. Kotwali Nagar, district-Saharanpur and the said case is the sole basis of his being booked in Gangster Act. In this context the relevant provisions of Juvenile Justice Act may be taken into consideration:
"Section 1(4): Short title, extent, commencement and application - Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under any such law.
Section 17: Proceedings under Chapter VIII of the Code of Criminal Procedure not competent against juvenile - Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974) no proceeding shall be instituted and no order shall be passed against the juvenile under Chapter VIII of the said Code.
Section 19: Removal of disqualification attaching to conviction - (1) Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.
(2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be.
Section 21: Prohibition of publication of name, etc., of juvenile in conflict with law or child in need of care and protection involved in any proceeding under the Act - (1) No report in any newspapers, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published.
In a similar case of Rishabh Awasthi vs. State of U.P. (supra) a Division Bench of this Court has held in Para Nos. 8, 9 and 10 as thus:-
8.The Juvenile Act is intended to protect the juvenile from the rigours of trial by a criminal court. It prohibits sentencing of a juvenile and committing him to prison. The act further extends protection to a juvenile from proceedings under Chapter VIII of Cr. P.C. and also prohibits newspapers, magazines etc. to disclose the particulars which may lead to identification of the juvenile. As its preamble suggests it seeks to adopt a child-friendly approach in the adjudication and disposition of the matters, in the best interest of children and for their ultimate rehabilitation."
9.The petitioner, not named in Case Crime No.270/2015 under sections 394, 411 I.P.C. initially, but surfaced in further investigation under section 173(8), after submission of final report in which he was declared juvenile and granted bail. After attaining majority, he has been hauled up in the impugned F.I.R. under section 3(1) of Gangster Act, on the premise of aforesaid single case. The petitioner being juvenile at the time of Case Crime No.270/2015, protection and benefit under Juvenile Justice Act, 2000 is certainly to be extended to him and F.I.R. under section 3(1) Gangster Act on the premise of such a single case cannot be approved off.
10.Where the legislation provides so much protection and benefit to a juvenile, we do not conform with the view of impugned F.I.R. and its registration against the petitioner under Section 3(1) of Gangster Act.
In the aforesaid case, the Division Bench of this Court has quashed the FIR and all subsequent proceedings against the juvenile initiated under the Gangsters Act, which were initiated against the petitioner on the basis of a criminal case, which was allegedly committed by the petitioner when he was a juvenile.
In the instant case, there is no controversy that the revisionist was 17 years 9 months and 13 days on the date of commission of the alleged offence in Case Crime no. 184 of 2000, under Sections 364A, 368 and 120B I.P.C., P.S. Kotwali Nagar, district-Saharanpur and had not completed eighteen years of age. It is also clear that the revisionist was booked under Gangsters Act on the basis of Case Crime no. 184 of 2000, under Sections 364A, 368 and 120B I.P.C., P.S. Kotwali Nagar, district-Saharanpur. In view of Section 2(k), 2(1) and 7A read with Section 20 of the said Act, the provisions thereof would apply to the revisionist's case and on the date of the alleged incident it has to be held that he was a juvenile.
Considering the law laid down by the Division Bench of this Court in the case of Rishabh Awasthi vs. State of U.P. (supra), the impugned order is not correct and has been passed in total disregard and contrary to the law laid down by the Division Bench of this Court. The impugned order is patently illegal and has been passed erroneously by the trial court.
In view of the above, the matter is remitted back to the concerned trial court with a direction that the trial court shall pass a fresh order in the light of law laid down by Division Bench of this Court in Rishabh Awasthi vs. State of U.P [2107(4) AJD 453 (DB)].
The revision is allowed with the aforesaid direction.
Copy of this order be transmitted to the concerned trial court.
Order Date :29.11.2019.
Faridul.