Allahabad High Court
Sachin vs State Of U.P. And Another on 30 May, 2022
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 13.04.2022 Delivered on 30.05.2022 Court No. - 93 Case :- CRIMINAL REVISION No. - 119 of 2022 Revisionist :- Sachin Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sunil Kumar Counsel for Opposite Party :- G.A.,Ishwar Chandra Tyagi Hon'ble Shamim Ahmed,J.
1. Heard Sri Sunil Kumar, learned counsel for the revisionist as well as Sri Ishwar Chandra Tyagi, learned counsel for the opposite party No.2 and Sri Abhishek Shukla, learned A.G.A.-1 for the State and perused the record.
2. This revision is directed against the order dated 14.10.2021 passed by the Additional District and Session Judge, Court No.4, Amroha, on an application (paper no. 13-B) dated 14.10.2021 moved on behalf of the revisionist in Session Trial No. 200 of 2018 arising out of Case Crime No. 735 of 2017: State of U.P. Vs. Pravav and others, under Section 395, 397, 427, 412 I.P.C. Police Station Gajraula, District Amroha by which he was pleased to reject the application dated 14.10.2021 of the revisionist-applicant seeking declaration of applicant to be Juvenile conflict with law and to refer his case to the Juvenile Justice Board, Amroha.
3. Learned A.G.A. has filed counter affidavit, which is on record. Learned counsel for the opposite party no.2 submits that he will argue the case in absence of counter affidavit and learned counsel for the revisionist submits that there is no need to file rejoinder affidavit, therefore, this court has no option to hear and proceed with the matter.
4. Learned counsel for the revisionist submits that the court below has passed the impugned order without jurisdiction vested in it, therefore, the revisionist has approached this Court directly by filing of the present revision and without filing the appeal under Section 101 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ''the Act, 2015') and the impugned order is totally illegal on the face of the record.
5. Facts which are the genesis of the present dispute are that an F.I.R. dated 29.12.201 was registered by the opposite party no.2 as Case Crime No. 0735 of 2017 against six known and one unknown persons namely, Pranav Kumar alias Raghav, Abrar, Mujeem, Pawan Kumar, Amar Pal Yadav, and Bittu Chauhan, under Sections 147, 148, 149, 394, 307, 427 and 506 I.P.C. with the allegation that he is District Coordinator of B.J.P. On 28.12.2017 when he was sitting in his office then accused persons along with 30-40 unknown persons having illegal arms in their hands entered in his office. Accused Raghav opened fire by which he has sustained injury in his hand. Again accused Raghav shot fired which hit his computer. In this incident Mahaveer Singh Chauhan, Pintu Singh, Sudhir Teetu alias Saurabh Choudhary and Anil Gupta have sustained injuries. The accused persons also committed loot of his golden chain, cash of Rs. 1,40,000/- and other document besides mobile phone and computer. They also damaged Scorpio Car, Scooter and Motor Cycle on account of the election enmity.
6. In the said F.I.R, the date of incident as alleged was 28.12.2017. The investigations were carried out and charge sheet was filed and after filing of the Charge-sheet the case was committed to the Court of Sessions where it was numbered as Session Trial No. 200 of 2018 : State Vs. Pranav and others. The trial was transferred to the Court of IV Additional District and Session Judge, Amroha where the proceedings of the present trial are going on.
7. The revisionist has claimed to be declare as a juvenile on the basis of his High School Certificate which indicates his date of birth as 10.07.2000, by filing an application dated 14.10.2021 before the Additional District and Session Judge, Court No.4, Amroha to consider his case and to refer this case for hearing before the Juvenile Justice Board, Amroha. The Additional District and Session Judge, Court No.4, Amroha relying on the age of the revisionist shown in the charge-sheet i.e. 20 years, rejected the application of the revisionist.
8. Learned counsel for the revisionist submits that the revisionist is a child. His date of birth is 10.07.2000 and the same has been recorded in his High School Certificate-cum-marksheet dated 17.05.2015 issued by the Board of High School and Intermediate Education U.P. (Madhyamik Shiksha Parishad, U.P.) for High School Examination 2015 which the revisionist passed with Roll No. 0723441 being regular student of S.P.L.D.S.V. M.I.C. Hasanpur Amroha and as such on the alleged date of incident i.e. 28.12.2017 the revisionist was less than 18 years old.
9. Learned counsel for the revisionist further submits that neither the revisionist was named in the F.I.R. nor he was put for identification from any prosecution witness nor there is any recovery or discovery of any case property or weapon of assault either from the possession or on the pointing of the revisionist, nor he was named as an accused by any witness nor there was any direct, indirect or circumstantial evidence to connect the revisionist with the alleged crime has been collected by the Investigating Officer nor there is any legal evidence collected against the revisionist but despite of that merely on the basis of confessional statement of co-accused, the revisionist has been made accused in the present case on the basis of charge-sheet filed by the police.
10. Learned counsel for the revisionist further submits that the revisionist is innocent and he has been falsely implicated in the present case by the police, during the course of investigation as he was not named in the F.I.R.
11. Learned counsel for the revisionist further submits that vide impugned order dated 14.10.2021 learned trial court rejected the aforesaid application of the revisionist in gross violation of the provisions of law and without following the procedure established by law to refer the matter to the Committee or the Board for determination against the spirit of the provisions made under the Act, 2015. He further submits that the court below did not have jurisdiction to decide the claim of juvenility and Juvenile Justice Board is empowered to decided the said question.
12. Learned counsel for the revisionist has drawn attention of this Court towards Section 94 (2) of the Act, 2015 and submits that Section 94 (2) provides the manner in which the determination of age is to be undertaken as well as also provides the preferential documents serially having the overriding effect on the other documents. The said provision does also contain a special clause that if any document as provided is not available then how the determination of the age is to be undertaken.
13. Learned counsel for the revisionist further submits that the Child Welfare Committee or the Juvenile Justice Board are the only authorities competent to hold the enquiry either regarding the determination of the age of the Juvenile. Accordingly the regular trial court holding trial of any criminal case is not competent to hold any such enquiry for determination to the age of a Juvenile conflict with law and to pass the order accordingly. As such the learned Fourth Additional District and Session Judge was supposed to refer the application moved by the applicant before the committee or before the Board ( as the case may be ) for determination and he will continue to proceed with the trial of rest of the accused persons . Whenever the report of Board or committee may be submitted before the aforesaid court after determination of age, thereafter the trial court has to proceed accordingly but in any case the learned trial court could not reject the application out rightly on the basis of the those grounds which are not known to law and in conflict of the law.
14. Learned counsel for the revisionist further submits that the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board is given top preference and in case if such a certificate is not available then as a secondary measure, the birth certificate given by the corporation or the Municipal authorities or Panchayat is to be given preference and if even this certificate is not available then only in absence of both above certificates, determination of age is to be done by an ossification test or by any other latest medical determination test conducted on the orders of the Committee or Board. Since in the present case the revisionist has relied upon his matriculation certificate issued by Board of High School and Intermediate Education U.P dated 17.05.2015 wherein the date of birth of the revisionist has been specifically mentioned as 10.07.2020 which proved itself that the revision was juvenile, and since the aforesaid document is an undisputed document and is having top priority in view of Section 94 (2) of the Act, therefore the learned trial court has committed gross illegality while rejecting the application dated 14.10.2021 of the revisionist out rightly without considering the provisions of law.
15. Learned counsel for the revisionist further submits that the learned trial court has himself noted in the impugned order dated 14.10.2021 that on the date of alleged incident i.e. 28.12.2017 the revisionist was aged about 17 years 5 months and 18 days old ( and his date of birth is 10.07.2000). The learned trial court has also taken note of the High School certificate of the revisionist in the impugned order which apparently proved that the learned trial court was conscious about both these facts, but while passing the impugned order has totally ignored and overlooked the facts and the impugned order was passed ignoring the material on record.
16. Learned counsel for the revisionist further submits that the trial court has also noted the objections raised by the learned Additional Government Advocate (Criminal) on the margin of the application dated 14.10.2021 filed by the revisionist-applicant in the impugned order and has wrongly been relied upon the said objection that in the charge-sheet the age of the revisionist is shown as 20 years but surprisingly enough the learned trial court has illegally been observed that there is a margin of two years both sides of the age shown in the High School Certificate and the revisionist is appearing to be 20 years of age physically.
17. Learned counsel for the revisionist further submits that the findings recorded by the learned court below in the impugned order is perverse in nature and contrary to the record as well as wholly illegal and without jurisdiction. Accordingly these findings are liable to be set aside and the impugned order is also liable to be set aside, the trial court has exceeded its jurisdiction which is not vested in him, the impugned order is illegal and liable to be set aside as the same is passed in violation of the Act, 2015.
18. Learned A.G.A. and learned counsel for opposite party no. 2 have conceded that the trial court has no jurisdiction to decide the juvenility of a person, in view of the provision of Section 94 (2) of the Act, 2015.
19. I have heard the learned counsel for the parties and persued 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 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 8 of The Juvenile Justice (Care and Protection of Children) Act, 2015 provides the powers, functions and responsibilities of the Board, which reads as under:-
(1) Notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, the Board constituted for any district shall have the power to deal exclusively with all the proceedings under this Act, relating to children in conflict with law, in the area of jurisdiction of such Board.
(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Children's Court, when the proceedings come before them under section 19 or in appeal, revision or otherwise.
(3) The functions and responsibilities of the Board shall include--
(a) ensuring the informed participation of the child and the parent or guardian, in every step of the process;
(b) ensuring that the child's rights are protected throughout the process of apprehending the child, inquiry, aftercare and rehabilitation;
(c) ensuring availability of legal aid for the child through the legal services institutions;
(d) wherever necessary the Board shall provide an interpreter or translator, having such qualifications, experience, and on payment of such fees as may be prescribed, to the child if he fails to understand the language used in the proceedings;
(e) directing the Probation Officer, or in case a Probation Officer is not available to the Child Welfare Officer or a social worker, to undertake a social investigation into the case and submit a social investigation report within a period of fifteen days from the date of first production before the Board to ascertain the circumstances in which the alleged offence was committed;
(f) adjudicate and dispose of cases of children in conflict with law in accordance with the process of inquiry specified in section 14;
(g) transferring to the Committee, matters concerning the child alleged to be in conflict with law, stated to be in need of care and protection at any stage, thereby recognising that a child in conflict with law can also be a child in need of care simultaneously and there is a need for the Committee and the Board to be both involved;
(h) disposing of the matter and passing a final order that includes an individual care plan for the child's rehabilitation, including follow up by the Probation Officer or the District Child Protection Unit or a member of a non-governmental organisation, as may be required;
(i) conducting inquiry for declaring fit persons regarding care of children in conflict with law;
(j) conducting at least one inspection visit every month of residential facilities for children in conflict with law and recommend action for improvement in quality of services to the District Child Protection Unit and the State Government;
(k) order the police for registration of first information report for offences committed against any child in conflict with law, under this Act or any other law for the time being in force, on a complaint made in this regard;
(l) order the police for registration of first information report for offences committed against any child in need of care and protection, under this Act or any other law for the time being in force, on a written complaint by a Committee in this regard;
(m) conducting regular inspection of jails meant for adults to check if any child is lodged in such jails and take immediate measures for transfer of such a child to the observation home; and
(n) any other function as may be prescribed.
26. Section 9 of The Juvenile Justice (Care and Protection of Children) Act, 2015 provides procedure to be followed by a Magistrate who has not been empowered under this Act, reads as under:
(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 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.
27. 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.
28. 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.
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 14.10.2021 passed by the Additional District and Session Judge, Court No.4, Amroha in Session Trial No. 200 of 2018 arising out of Case Crime No. 735 of 2017: State of U.P. Vs. Pravav and others, under Section 395, 397, 427, 412 I.P.C. Police Station Gajraula, District Amroha is hereby set aside and reversed.
The matter is remanded back to court of Additional District and Session Judge, Court No.4, Amroha to pass a fresh orders within two months from today in accordance with law, without granting any unnecessary adjournments to either of the parties.
Order Date :- 30.05.2022 Arvind