Allahabad High Court
Wasif vs State Of U.P. And Another on 13 April, 2022
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 93 A.F.R. Case :- CRIMINAL REVISION No. - 751 of 2022 Revisionist :- Wasif Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Sushil Shukla,Aditya Prakash Singh Counsel for Opposite Party :- G.A. Hon'ble Shamim Ahmed,J.
1. This Court vide order 25.03.2022 issued notice to the opposite party No. 2. Office report dated 11.04.2022 indicates that notice has already been served upon the opposite party No. 2 through legal heirs as per the report of the Chief Judicial Magistrate, Bulandshahar dated 08.04.2022. Thereafter, the case was again taken up on 11.04.2022. Today when the case is being taken up in the revised call, even no one has put in appearance on behalf of opposite party No. 2, nor any counter affidavit has been filed on his behalf. It appears that opposite party No. 2 is not interested to contest the case.
2. Counter affidavit filed on behalf of State is on the record.
3. Learned counsel for the revisionist denied the averments made in the counter affidavit filed on behalf of State.
4. In view of the aforesaid, the Court proceeds to decide the matter finally.
5. Heard Shri Sushil Shukla, Advocate, assisted by Shri Aditya Prakash Singh, the learned counsel for the revisionist and Shri Vinay Prakash Sahu, the learned A.G.A. for the State.
6. This revision is directed against the order dated 27.02.2020 passed by the court of Juvenile Justice Board, Bulandshahar in Criminal Misc. Case No. 97 of 2016, arising out of Case Crime No. 483 of 2016, under Sections 420, 457, 471, 120-B I.P.C., P.S. Khurja Nagar, District Bulandshahar, by which the Juvenile Justice Board had cancelled the interim bail granted to the accused-revisionist by the learned Sessions Judge, Bulandshahar. Aggrieved from the order dated 27.02.2020 the revisionist challenged the same before the court of learned Additional Sessions Judge/ Special Judge (POCSO Act), Bulandshahar in Criminal Appeal No. 9 of 2022, which was dismissed by the learned appellate court vide order dated 29.01.2022, affirming the order dated 27.02.2020 passed by the Juvenile Justice Board. Against the aforesaid orders the present revision is being preferred before this Court.
7. Learned counsel for the revisionist submits that the only legal question involved in this case is whether Juvenile Justice Board who is only competent to determine age of revisionist as to whether he was juvenile on the date of incident or not, can cancel the interim bail granted by the court of Session Judge, Bulandshahar, and whether the Board has vested with its jurisdiction or has exceeded its jurisdiction.
8. Learned counsel for the revisionist further submits that the Juvenile Justice Board has exceeded its jurisdiction and no power is vested to the Board to cancel interim bail granted by the court of Session Judge, Bulandshahar.
9. Learned counsel for the revisionist further submits that the facts in brief which arise the present issue is that an F.I.R. bearing Case Crime No. 483 of 2016, under Sections 419, 420, 467, 468, 471 I.P.C., P.S. Khurja Nagar, District Bulandshahar was lodged by the infomant-opposite party No. 2 against unknown person. During investigation eight persons were found involved. The revisionist along with his father (co-accused) and two other persons who were also made co-accused in the case, were arrested on 24.07.2016 and from their joint possession Rs.5,50,000/- were recovered. After being arrested on 24.07.2016 the revisionist moved his regular Bail Application No. 2578 of 2016 before the court of learned Sessions Judge, Bulandshahar, claiming therein that he was juvenile on the date of incident. In support of his claim for declaring him juvenile the revisionist rests upon his High School certificate of the year, 2017, issued by the Central Board of Secondary Education, the certificate issued by the Principal of Hilman Public School, Agra, certifying his study in Class-Xth, and copy of certificate issued by Principal, Yugshakti Gayatri School, Agra, certifying his education in Class-VIIIth.
10. Learned counsel for the revisionist further submits that in all the abovementioned documents the date of birth of revisionist was consistent as 17.09.1999. It has further been argued that apart from the aforesaid educational certificates, a birth certificate issued by Registrar, (Birth & Death), Agra, was also appended with the aforesaid bail application in which same date of birth of the revisionist is mentioned.
11. Learned counsel for the revisionist further submits that while hearing the bail application and taking note of the claim of juvenility of the revisionist the learned Sessions Judge has referred the matter for his age determination to the Juvenile Justice Board with the finding that the Board shall necessarily determine and return the finding about the age of the revisionist within 15 days.
12. Learned counsel for the revisionist further submits that due to non functioning of the Board no such age determination could be made in next two months, thereafter, the revisionist claimed interim bail before the court of learned Sessions Judge, who after considering the case of the revisionist, vide its order dated 19.10.2016 granted interim bail to the revisionist till the Board becomes functional.
13. Learned counsel for the revisionist further submits that before Juvenile Justice Board, Bulandshahar, the enquiry in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as, ''the Act, 2015') began and has been registered as Misc. Case No. 97 of 2016, and statement of mother of the revisionist and the statements of Principals of Schools were also recorded, and nothing was remained to give finding by the Board regarding age determination of the revisionist, the said enquiry has been remained pending for the last five years, whereas the entire documentary evidence was produced by the revisionist before the Board for determining his age and to declare him as juvenile.
14. Learned counsel for the revisionist further submits that despite the revisionist had been attending enquiry regularly for the last five years except some adjournments on few dates sought by him, surprisingly on 27.02.2020 the Board had cancelled the interim bail granted by the court of learned Sessions Judge, only on the ground of absence of the accused revisionist on that date and issued non bailable warrant against him.
15. Learned counsel for the revisionist further submits that cancelling the interim bail by the Juvenile Justice Board, which was granted by the court of learned Sessions Judge, is completely without jurisdiction vested in the Board under the provisions of Act, 2015.
16. Learned counsel for the revisionist further submits that the interim bail cancellation order was challenged by the revisionist before the court of learned Additional Sessions Judge/ Special Judge, (POCSO) Act, Bulandshahar in appeal, which was also dismissed vide order dated 29.01.2022. Both the orders dated 27.02.2020 and 29.01.2022 are impugned in this revision.
17. Learned counsel for the revisionist further submits that the Juvenile Justice Board as well as the appellate Court had passed the impugned order in a mechanical manner without considering the evidence on record, and the Juvenile Justice Board has exceeded its jurisdiction while cancelling the interim bail order, and, therefore, issuing non bailable warrant against the revisionist, which is without jurisdiction. The Juvenile Justice Board has failed to discharge its duty as contemplated under the law and delayed the proceeding pending before them for deciding the issue of question of declaration of juvenility of the revisionist.
18. Learned A.G.A. has opposed the submissions of the revisionist and submits that the impugned order was rightly passed by both the courts below.
19. I have considered the arguments advanced by learned counsel for the parties and perused the record.
20. Before this Court proceeds further to assess the evidence and to consider and decide the case on merits, it shall be appropriate to examine the nature and scope of enquiry as contemplated under the law.
21. The Supreme Court of India in Ashwani Kumar Saxena Vs. State of M.P. in Criminal Appeal No. 1403 of 2021 (decided on 13.09.2012), examined the scope of an enquiry expected from a Court, the Juvenile Justice Board and the Committee in the light of earlier judgements and was pleased to observe in para-27 as under:-
"Section 7A, obliges the court only to make an inquiry, not an investigation or a trial, an inquiry not under the Code of Criminal Procedure, but under the J.J. Act. Criminal Courts, JJ Board, Committees etc., we have noticed, proceed as if they are conducting a trial, inquiry, enquiry or investigation as per the Code. Statute requires the Court or the Board only to make an ''inquiry' and in what manner that inquiry has to be conducted is provided in JJ Rules. Few of the expressions used in Section 7A and Rule 12 are of considerable importance and a reference to them is necessary to understand the true scope and content of those provisions. Section 7A has used the expression "court shall make an inquiry", "take such evidence as may be necessary" and "but not an affidavit". The Court or the Board can accept as evidence something more than an affidavit i.e. the Court or the Board can accept documents, certificates etc. as evidence need not be oral evidence."
22. The Hon'ble Supreme Court held that the enquiry on the point of juvenility has nothing to do with the enquiry as contemplated under other legislations and gave an opinion in paras-32, 34 and 36 of the aforesaid judgment of Ashwani Kumar Saxena (supra) as below:
32. Consequently, the procedure to be followed under the J.J. Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under section 7A of the Act. Many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the Penal laws forgetting the fact that the specific procedure has been laid down in section 7A read with Rule 12.
34. "Age determination inquiry" contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
36. Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination.
23. The Madhya Pradesh High Court in Sanat Kumar Yadav Vs. State of M.P. in Criminal Revision No. 3049 of 2016 (decided on 02.01.2017) held that the age determination enquiry has to be conducted within the purview of Section 9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the, ''Act, 2015') by seeking evidence and by obtaining documents mentioned under Section 94(2) of the Act, 2015 which are comparable with Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the, ''Act, 2000) and the Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the, ''Rules, 2007'). In the above case the Madhya Pradesh High Court referred to judgment of the Hon'ble Supreme Court in Akhilesh Yadav Vs. Vishwanath Chaturvedi, 2013(2) SCC 1, to stress the point that the courts are not expected to conduct a roving enquiry into the correctness of school certificate or the date of birth certificate. Madhya Pradesh High Court gave an opinion that school record kept during the normal course of business and whose authenticity or genuineness has not been questioned can form the basis of the determination of age of a juvenile.
24. In the case of Rishipal Singh Solanki Vs. State of U.P. in Criminal Appeal No. 1240 of 2021 (decided on 18.11.2021), the Hon'ble Supreme Court held that where an application is filed before the court claiming juvenility, the provisions of sub Section 2 of Section 94 of the Act, 2015 would have to be applied or read along with sub Section 2 of Section 9 so as to seek the evidence for the purpose of finding as regard the age. The Apex Court also held that the burden of proving is on the person raising such claim, however, the documents mentioned in the relevant rules of 2007 made under the Act, 2000 or the relevant Rules under Section 94(2) of the Act, 2015 shall be sufficient for prima facie satisfaction of the court. The Hon'ble Supreme Court held that such presumption is not conclusive to prove the age and is rebutable on the evidence lead by opposite side. The Hon'ble Supreme Court also cautioned that a hyper technical approach should not be adopted when evidence is adduced on behalf of the accused in support of plea of juvenile.
25. Section 18 of the Act, 2015 provides that if it is found that any child below the age of 16 years has committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in force, may pass orders like allowing child to go home after advice or admonition or to direct the child to participate in group counselling or perform community service or may be released on probation of good conduct or he may be sent to special home for such period not exceeding three years etc. Perusal of provisions of the Act, 2015 establish that in no case the child below sixteen years of age having committed an heinous offence can be detained as convict in regular jails. The punishment as provided under the above provisions is basically of reformative nature. The general principles of care and protection of children as given in Chapter 2 of J. J. Act also include a principle of repatriation and restoration of every child with his family at the earliest.
26. Section 94 of the Act, 2015 provides presumption and determination of age of juvenile and such presumption is not conclusive to prove the case and is rebutable on the evidence lead by the aggrieved parties. Section 94 of the Ac, 2015 is reproduced herein below:
Presumption and determination of age.-(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
27. In view of the above facts and submissions and considering the argument as advanced on behalf of revisionist that even assuming without admitting that the revisionist had failed to appear on the date fixed before the Juvenile Justice Board during enquiry under Section 94 of the Act, 2015, then at most it would have rejected the claim of juvenility. The Board had failed to perform its obligatory duty provided under the provisions of the Act, 2015 in not deciding the claim of juvenility of revisionist for the last five years. Both the Board as well as the appellate court failed to notice that there is no provision for cancellation of bail once granted to any delinquent juvenile under the Act, 2015.
28. There appears force in the arguments of the learned counsel for the revisionist that the lower appellate court has erred in recording the finding that it was the accused-revisionist, who is creating hurdles in the on going enquiry before the Board regarding his age determination. The said finding is perverse in as much as the record of proceedings before the Board reveals that all the evidence has been collected by the Board in the year, 2016 itself, and therefore, there was no legal impediment in deciding the issue of determination of age of the revisionist and the Board has waisted its time for appearance of informant and the said proceedings of enquiry had remained pending over more than five years without any fault of the revisionist and that too in violation of the provisions of Act, 2015. Moreover, once the educational documents filed by the revisionist mention his date of birth as 17.09.1999 consistently on all levels, which was supported by the birth certificate issued by the concerned Registrar and there appears no contrary evidence before the Board, the Board ought to have decide the issue of juvenility of the revisionist, and not deciding his claim of juvenility the Board has caused great prejudice to the revisionist who was made to face trial with the other co-accused persons before the trial court for the last more than five years.
29. In view of the facts and circumstances as discussed above and in agreement with the law laid down by Hon'ble Apex Court in the cases of Ashwani Kumar Saxena (supra), Akhilesh Yadav (supra) and Rishipal Singh Solanki (supra), as well as in view of the law laid down by Hon'ble Madhya Pradesh High Court in the case of Sanat Kumar Yadav (supra), this revision succeeds and is allowed. The impugned order dated 27.02.2020 passed by Juvenile Justice Board, Bulandshahar in Criminal Misc. Case No. 97 of 2016, arising out of Case Crime No. 483 of 2016, under Sections 419, 420, 467, 471, 120-B I.P.C., Police Station Khurja Nagar, District Bulandshahar and the impugned judgment and order dated 29.01.2022 passed by learned Additional Sessions Judge/ Special Judge (POCSO Act), Bulandshahar in Criminal Appeal No. 9 of 2022 are hereby set aside and reversed.
30. It is further observed that the Juvenile Justice Board has yet not decided the claim of juvenility of the revisionist for the last five years, being a peculiar case the Juvenile Justice Board, Bulandshahar is directed to decide the question of juvenility of revisionist within a period of two months from the date of production of certified copy of this order, without granting any unnecessary adjournments to either of the parties and the case may be decided in accordance with law.
31. It is also made clear that this Court has not stayed the proceedings of the trial and the trial court is at liberty to proceed further with the case and decide the same in accordance with law.
Order Date :- 13.4.2022 Mustaqeem./Arvind