Delhi District Court
Arun vs The State on 9 May, 2018
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDITIONAL SESSIONS JUDGE05, SOUTH WEST DISTRICT
DWARKA COURTS, NEW DELHI
Criminal Appeal No.: 55/17
Arun
S/o Jitender Kumar
R/o VPO Dhansa,
New Delhi. .... Appellant/accused
Vs
The State .... Respondent
Appeal under Section 101 of Juvenile Justice Act for setting aside the
impugned order dated 23.01.2017 passed by Learned Metropolitan
Magistrate
Date of Institution : 14.02.2017
Arguments heard on : 23.04.2018
Date of Judgment : 09.05.2018
JUDGMENT
1. Appeal under section 101 of The Juvenile Justice (Care & CA No 55/17 Arun Vs. The State Page 1 of 11 Protection of Children) Act 2015 (in short JJ Act) has been preferred by appellant/accused against impugned order dated 23.01.2017 passed by Magisterial Court of Sh. Rajinder Singh, Ld. MM06(SW), Dwarka, Delhi, in case FIR No. 236/16 under section 363/302/201/34 IPC PS J.P.Kalan, titled as State Vs. Arun & Anr.
2. Vide impugned order, the Magisterial Trial Court has held the appellant/accused Arun S/o Sh. Jitender is not a juvenile for the purpose of the present case.
3. I have heard appellant/accused through Sh. Nagender Deswal, Learned Counsel and respondent State through Sh. Pramod Kumar, Learned Additional Public Prosecutor for the State. I have perused the record of appeal and of Trial Court. I have given my thoughtful consideration to the rival contentions put forth.
4. Appeal rests upon the premise that appellant/accused was arrested by the police in case FIR No. 236/16 under section 363/302/201/34 IPC PS J.P.Kalan and sent to judicial custody on CA No 55/17 Arun Vs. The State Page 2 of 11 26.12.2016; appellant/accused was born on 19.01.2000 as per records, he is minor and aged about 16 years 11 months at the time of alleged commission of offence; appellant/accused had filed application before the Magisterial Court for declaring him as a juvenile and for sending him to Juvenile Justice Board for further action as per JJ Act and had also filed copy of mark sheet of his first attended school Midfield Public School and school leaving certificate from Govt. CoEd. Senior Secondary School, Village Kazipur, New Delhi110073; after verification, IO had filed his report that the documents filed by appellant/accused are genuine but the copy of matriculation certificate issued by Council of Secondary Education, Mohali finds mention of the date of birth of appellant/accused as 01.07.1996. It is further averred that the earlier filed Criminal Revision No.08/17 was dismissed as withdrawn vide order dated 06.02.2017 passed by Ms. Anu Grover Baliga, Ld. ASJ, Dwarka, New Delhi; impugned order was passed on the basis of copy of matriculation certificate issued by Council of Secondary Education; impugned order is bad in law and conviction, is based on surmises and conjectures, hypothetical assumption and CA No 55/17 Arun Vs. The State Page 3 of 11 presumption; Also was argued that Trial Court has misconstrued the provisions of law and the judgment passed by Apex Court in Crl. Appeal No.486/2016 titled as Parag Bhati Vs. State of UP & Ors. 2016(3) JCC 1836 and its approach is manifestly misconceived; It has been prayed that impugned order be set aside and the appellant be declared as juvenile and sent to Juvenile Justice Board in terms of JJ Act, 2015.
5. Section 372 in Chapter XXIX of the Code of Criminal Procedure 1973 reads as under: "372. No appeal to lie unless otherwise provided. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force."
6. Sections 2(10), 2(13), 2(22), 9, 94, 101 and 102 of The Juvenile Justice (Care & Protection of Children) Act 2015 read as under: "2(10). "Board" means a Juvenile Justice Board constituted under section 4;
CA No 55/17 Arun Vs. The State Page 4 of 11 2(13). "child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. 2(22). "Committee" means Child Welfare Committee constituted under section 27.
9. Procedure to be followed by a Magistrate who has not been empowered under this Act. (1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction. (2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a CA No 55/17 Arun Vs. The State Page 5 of 11 finding on the matter, stating the age of the person as nearly as may be:
Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.
(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.
(4) In case a person under this section is required to be kept in protective custody, while the person's claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety.
94. 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 CA No 55/17 Arun Vs. The State Page 6 of 11 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.CA No 55/17 Arun Vs. The State Page 7 of 11
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.
(2) An appeal shall lie against an order of the Board passed after making the preliminary assessment into a heinous offence under section 15 of the Act, before the Court of Sessions and the Court may, while deciding the appeal, take the assistance of experienced psychologists and medical specialists other than those whose assistance has been obtained by the Board in passing the order under the said section.
(3) No appeal shall lie from, --
(a) any order of acquittal made by the Board in respect of a child alleged to have committed an offence other than the heinous offence by a child who has completed or is above the age of sixteen years; or CA No 55/17 Arun Vs. The State Page 8 of 11
(b) any order made by a Committee in respect of finding that a person is not a child in need of care and protection.
(4) No second appeal shall lie from any order of the Court of Session, passed in appeal under this section.
(5) Any person aggrieved by an order of the Children's Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974).
102. Revision: The High Court may, at any time, either on its own motion or on an application received in this behalf, call for the record of any proceeding in which any Committee or Board or Children's Court, or Court has passed an order, for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit:
Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.
7. Impugned order was passed by the Court of Ld. Metropolitan Magistrate06 of SouthWest District. Impugned order was not passed by the Juvenile Justice Board (in short Board) nor by the Child Welfare Committee (in short Committee). Under section 101 of the JJ Act 2015, CA No 55/17 Arun Vs. The State Page 9 of 11 the person aggrieved by an order made by the Committee or the Board under the JJ Act 2015 can prefer an appeal to the Children's Court.
When a person alleged to have committed an offence claims before a Court including a Magisterial Court in terms of subsection (2) of section 9 of JJ Act 2015 that the person is a child or was a child on the date of commission of the offence, then such an application is decided in terms of aforesaid section 9 of JJ Act 2015 and the rules made thereunder. Order passed on such an application cannot be construed to be an order passed by either Board or Committee nor against such an order, an appeal can be preferred under section 101 of JJ Act 2015, elicited above. As per section 102 of JJ Act 2015, elicited above, the remedy of revision is maintainable in the High Court. As per section 102 of JJ Act 2015, elicited above, the legality or propriety of any order passed by any Court can be tested/satisfied. Appellant has not chosen to get his grievance redressed under section 102 of the JJ Act 2015. As per section 372 in Chapter XXIX of the Code of Criminal Procedure 1973 (in short Cr.P.C.), no appeal lies from any order of a Criminal Court except as provided for by Cr.P.C. or by any other law for the time CA No 55/17 Arun Vs. The State Page 10 of 11 being in force. There is no provision in Chapter XXIX of Cr.P.C. enabling appellant to file appeal against impugned order. Since impugned order has not been passed either by the Committee or the Board, appeal against said order under section 101 of the JJ Act 2015 does not lie. In this fact of the matter, the appeal under consideration being not maintainable is dismissed.
8. Trial Court record be sent back to concerned Magisterial Court with copy of this judgment. File of appeal be consigned to record room. Digitally signed by
GURVINDER GURVINDER PAL SINGH
PAL SINGH Date: 2018.05.09
16:08:48 +0530
Announced in the open Court (GURVINDER PAL SINGH)
on date 09.05.2018 ASJ 05/SW/DWARKA COURTS,
NEW DELHI (sc)
CA No 55/17 Arun Vs. The State Page 11 of 11