Allahabad High Court
Sheebu Alias Shabe Kadar Khan vs State Of U.P. & Anr. on 4 February, 2020
Author: Anant Kumar
Bench: Anant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R Court No. - 15 Case :- CRIMINAL REVISION No. - 1306 of 2018 Revisionist :- Sheebu Alias Shabe Kadar Khan Opposite Party :- State Of U.P. & Anr. Counsel for Revisionist :- Sandeep Kumar Ojha,Man Mohan Singh,Maneesh Kumar Singh,Navita Sharma Counsel for Opposite Party :- Govt. Advocate,Ravindra Shukla Hon'ble Anant Kumar,J.
(1) Counter affidavit filed on behalf of complainant is taken on record.
(2) Heard learned counsel for the revisionist, learned A.G.A. for the State, the learned counsel for private opposite parties and perused the record.
(3) This revision has been filed with the prayer that this Hon'ble Court may kindly be pleased to set aside the judgment and order dated 13.09.2018 passed by Fourth Additional Session Judge, Sultanpur passed in Session Trial No.433 of 2014 (State Versus Kamruddin and others) by which application for declaration of juvenile has been rejected by him arising from Case Crime No.255 of 2014, under Sections 302/34, 120B of I.P.C. and Section 3/25 Arms Act relating to Police Station - Dostpur, District - Sultanpur.
(4) Brief facts relevant for disposal of this revision are that an application was moved for declaring the revisionist juvenile on the ground that on the date of occurrence i.e. 14th July, 2014 he was juvenile as the date of birth of the revisionist is 20.09.1998, as such on the date of occurrence, he was 15 years 10 months and 24 days old. In support of the application, a birth certificate purportedly issued from Nagar Panchayat, Dostpur, Sultanpur, has been filed. The trial court after hearing the counsel for the applicant/ revisionist as well as learned counsel for the State came to the conclusion that date of birth of the appellant was got registered in Nagar Panchayat on 26.04.2017 i.e. after three years of occurrence, hence the certificate issued by Nagar Panchayat, Dostpur is not trustworthy and on this very ground the said application has been rejected, hence this revision.
(5) The sole arguments of learned counsel for the appellant is that as per Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'Act, 2000'), Section 7A of the Act, 2000, the inquiry has not been conducted by the court concerned. Section 7A of the Act, 2000 provids as under :
"Section 7A in The Juvenile Justice (Care and Protection of Children) Act, 2015 [7A. Procedure to be followed when claim of juvenility is raised before any court.--
(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.]"
(6) It is further stated that instead of following to the said provision, the trial Court has simply held that birth certificate produced by the applicant/ revisionist is not trustworthy but the trial court should have conducted inquiry for the same and by not conducting such inquiry the trial Court has committed manifest error, which required interference by this Court.
(7) In this regard, a case law reported in [2019 (2) JIC 11 (SC)]; Raju vs. State of Haryana, has been cited, wherein the Hon'ble Apex Court has held as under:
"2. The brief facts leading to the instant appeal are that an FIR was lodged against the Appellant Raju s/o Rajendar Singh, and two other persons, viz. Raju s/o Bhim and Raja @ Raj Kumar s/o Makhsi, alleging that the three persons had intercepted the prosecutrix when she was passing by some fields along with her one year old brother and had taken her to a field nearby, whereupon Raju s/o Bhim and Raja @ Raj Kumar s/o Makhsi engaged in the gang rape of the prosecutrix, while the Appellant stood outside the field. The prosecutrix was aged fifteen years at the time of the incident, which occurred on 14.09.2000. The three accused were convicted for the offence punishable under Section 376(2)(g) of the IPC, and sentenced to 10 years' rigorous imprisonment and a fine of Rs. 500/, and further two months' rigorous imprisonment in default of payment of fine. Aggrieved by the same, the three accused appealed to the High Court.
3. The Appellant, inter alia, raised the defence before the High Court that he was aged less than 18 years at the time of commission of the offence, i.e. 14.09.2000, and hence was entitled to the benefit of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short, "the 2000 Act"). The High Court, however, rejected such contention and affirmed the conviction of the three accused, including the Appellant.
4. Aggrieved by the above judgment, the Appellant filed the instant appeal, inter alia raising the plea of juvenility again. The Appellant relied upon a transfer certificate issued in his favour by the Dayanand Middle School, Sohna, Gurgaon which showed his date of birth to be 12.07.1984. He also relied upon a certificate issued by the Government Senior Secondary School (Boys), Sohna which showed his date of birth to be the same. It was submitted by the Appellant before this Court that the certificates in question prima facie entitled him to claim the conduct of an inquiry in terms of Section 7A of the 2000 Act. The Appellant referred to the decisions of this Court in Murari Thakur v. State of Bihar, (2009) 16 SCC 256, Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344, and Jitendra Singh @ Babboo Singh v. State of U.P., (2010) 13 SCC 523.
5. Keeping in mind such circumstances and the certificates relied upon, this Court vide order dated 09.08.2012 directed the Registrar (Judicial) of this Court to conduct an inquiry in respect of the age of the Appellant in terms of Section 7A of the 2000 Act read with the rules framed thereunder, and to submit a report to this Court within four months from the order.
6. This Court received such report on 07.01.2013, which determined that the age of the Appellant was 16 years, 2 months and 2 days at the time of commission of the offence and that he was thus a juvenile at that time. Thereafter, arguments were heard and judgement reserved. However, subsequently, the State raised the argument that the Court had not looked into the question of whether the plea of juvenility as decided by the Registry of this Court should be given precedence over the view of the High Court. By an order dated 25.04.2014, this Court directed that the appeal be heard further. Shri Siddhartha Dave was subsequently appointed as amicus curiae to assist the Court.
7. It was submitted by the learned amicus curiae that the learned Registrar (Judicial) of this Court had, after duly calling for records and appreciating the material adduced, reached the conclusion that the Appellant was a juvenile at the time of commission of the offence, and there was no reason to deny the Appellant the benefit of such finding. Moreover, he submitted that seeing that it was upon the direction of this Court that the learned Registrar had conducted the inquiry under Section 7A of the 2000 Act and the rules framed thereunder, and had submitted his report to this Court after conducting such inquiry in accordance with law, the report may be treated as having been made by this Court itself.
8. Heard the learned amicus curiae and advocate for the State, and perused the material on record.
9. It is by now well-settled, as was held in Hari Ram v. State of Rajasthan, (2009) 13 SCC 211, that in light of Sections 2(k), 2(l), 7A read with Section 20 of the 2000 Act as amended in 2006, a juvenile who had not completed eighteen years on the date of commission of the offence is entitled to the benefit of the 2000 Act (also see Mohan Mali v. State of Madhya Pradesh, (2010) 6 SCC 669; Daya Nand v. State of Haryana, (2011) 2 SCC 224; Dharambir v. State (NCT) of Delhi (supra); Jitendra Singh @ Babboo Singh v. State of Uttar Pradesh, (2013) 11 SCC 193). It is equally wellsettled that the claim of juvenility can be raised at any stage before any Court by an accused, including this Court, even after the final disposal of a case, in terms of Section 7A of the 2000 Act (see Dharambir v. State (NCT) of Delhi, (supra), Abuzar Hossain v. State of West Bengal, (2012) 10 SCC 489; Jitendra Singh @ Babboo Singh v. State of UP, (supra); Abdul Razzaq v. State of Uttar Pradesh, (2015) 15 SCC 637).
10. In light of the above legal position, it is evident that the Appellant would be entitled to the benefit of the 2000 Act if his age is determined to be below 18 years on the date of commission of the offence. Moreover, it would be irrelevant that the plea of juvenility was not raised before the Trial Court, in light of Section 7A. As per the report of the inquiry conducted by the Registrar (Judicial) of this Court, in this case, the Appellant was below 18 years of age on the date of commission of the offence. The only question before us that needs to be determined is whether such report may be given precedence over the contrary view taken by the High Court, so that the benefit of the 2000 Act may be given to the Appellant.
11. Before proceeding further, it would be useful to refer to Section 7A of the 2000 Act and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short, "the 2007 Rules"), which deal with the making of an inquiry by the Court in case of a claim of juvenility. Section 7A of the 2000 Act is as follows:
"7A. Procedure to be followed when claim of juvenility is raised before any court-- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under subsection (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect." (emphasis supplied)
12. Sub-rule (3) of Rule 12 of the 2007 Rules states the following regarding the procedure to be followed for age determination:
"In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law." (emphasis supplied)
13. It is evident from a perusal of the above that if any Court, including this Court, is of the opinion that an accused person was a juvenile on the date of commission of the offence, or if a claim of juvenility is raised before it, the Court must conduct an inquiry regarding the determination of the age of the accused. The evidence collected by way of such inquiry, as is specified in clauses (a)(i), (ii), and (iii) of Rule 12(3), or in the absence whereof, clause (b) of the same, is treated as conclusive proof of the age of the accused. In such a situation, it would be clear that such an inquiry conducted by this Court would be given precedence over a view of the age of the accused taken by the High Court. It is relevant to note here itself that in this case, the High Court decided the issue merely upon an assessment of the material on record without resorting to the procedure governing inquiries for the determination of age as laid out in Section 7A of the 2000 Act and Rule 12 of the 2007 Rules.
14. At this point, it is necessary to briefly discuss the findings of the High Court in the impugned judgment regarding the age of the accused to underscore that it has not conducted the inquiry stipulated as per Section 7A and Rule 12. Before the High Court, the Appellant submitted a report of the Assistant Commissioner of Police, Bhondsi, Gurgaon to the effect that his date of birth was 12.07.1984, thereby claiming the benefit of the 2000 Act. This plea was rejected on the grounds of failure to raise the plea of juvenility before the Trial court; nonproduction of birth certificate in spite of an opportunity being granted to do so; absence of the Appellant's name in the birth register dated 12.07.1984 and for the years 198384 and 1984-85; non-corroboration of the date of birth certificates issued by schools attended by the Appellant through other documentary evidence; non-matching of the name on such certificates (Raj Kumar) with the name of the Appellant as brought on record (Raju); and non-corroboration of the address of the Appellant through such certificates, which simply stated that the date of birth of the student named Raj Kumar was 12.07.1984.
15. The High Court evidently did not even frame its discussion in terms of whether the evidence brought on record was sufficient to conduct an inquiry under the 2000 Act and the 2007 Rules, let alone order and conduct such an inquiry. On the contrary, it simply recorded that the evidence did not go to show that the Appellant was a juvenile at the time of the commission of the offence, and proceeded to affirm the conviction of the Appellant on merits.
16. Therefore, it is evident that the only inquiry as stipulated under the 2000 Act and the 2007 Rules was conducted by the Registrar (Judicial) upon the directions of this Court, after the Court was satisfied upon going through the school certificates adduced by the Appellant that the certificates in question prima facie entitled him to claim the conduct of such an inquiry. In such a situation, the question regarding whether precedence may be given to the inquiry of a Registrar (Judicial) of this Court over the opinion of the High Court regarding the age of an accused can be restated as whether such inquiry conducted by the Registrar (Judicial) upon the direction of this Court, if thereafter affirmed by this Court, would amount to an inquiry conducted by this Court itself. If this be the case, the findings of such inquiry would prevail over the view taken by the High Court, as is evident from the preceding discussion.
17. We are of the opinion that the above question must be answered in the affirmative. This Court, on previous occasions as well, has adopted the practice of directing the Registrar (Judicial) to conduct the inquiry in terms of Rule 12 of the 2007 Rules on behalf of this Court, and accepted the findings made therein (see Dharambir v. State (NCT) of Delhi, (supra). Seeing that the Registrar (Judicial) is a District Judge serving on deputation at the Supreme Court, recourse to his or her assistance in the form of collecting evidence and arriving at a finding regarding the claim of juvenility of the person concerned may be undertaken by this Court in order to save its judicial time. However, it must be stressed that the findings in an inquiry conducted by the Registrar (Judicial) would not per se prevail upon a contrary view taken by the High Court. Only after this Court applies its judicial mind to such report with due regard to the confines of the procedure stipulated in Section 7A of the 2000 Act and Rule 12 of the 2007 Rules, and only if it thereafter confirms the findings in such report would the same prevail upon a contrary view taken by the High Court which is not based upon any such inquiry."
In view of the said circumstances, the Hon'ble Apex Court has held that while disposing of the application of the accused claiming juvenality, an inquiry under Section 7A of the 2000 Act is mandatory and the application cannot be disposed of any slip short manner."
(8) Another case law of this Court cited on behalf of appellant reported in [2018 (3) JIC 74 (All)] Mohd. Yunus v. State of U.P. & Anr., wherein this Court has held as under:
"8. The above provisions shows that the procedure to be followed under J.J. Act in conducting an inquiry is the procedure laid down in the statute itself. We cannot import other procedure laid down in the Code of Criminal Procedure or any other enactment while making inquiry with regard to the juvenility of a person. The age determination inquiry contemplated under J.J. Act and Rules has nothing to do with an inquiry under any other legislation. There may be situation where the entry made in the Matriculation or equivalent certificates, date of birth certificate from school first attended and even birth certificate given by a corporation or a municipal authority, or a panchayat may not be correct, but the Court or the Juvenile Justice Board or the Committee functioning under J.J. Act is not expected to conduct such a roving inquiry and to go behind those certificates to examine correctness of those documents, kept during normal course of business. In Ashwani Kumar Saxena (supra), it has been observed by the Apex Court that in this situation, only in cases where those documents/certificates are found to be fabricated or manipulated, the Court, Juvenile Justice Board or the Committee need to go for medical report for age determination. In the present case, the Transfer Certificate of NAS Inter College, Meerut from where High School was done by the accused- Asif Saifi is also available on record which shows that Neetu Bal Academy, Junior High School was the earlier school of accused. The T.C. of Neetu Bal Academy aforesaid is also on record which shows that accused Asif Saifi passed out 6th,7th and 8th classes from the School and in that T.C. also the date of birth is mentioned as 01.06.2000. In the case of Parag Bharti (Juvenile) Vs. State of U.P. Passed in Criminal Appeal no. 486 of 2016 arising out of SLP No. 5893 of 2013, the Apex Court has considered so many decisions including the decision given in the case of Om Prakash Vs. State of Rajsthan (Supra) relied upon by the revisionist and it has been observed that it is a settled proposition of law that if the Matriculation or equivalent certificates are available and there is no other material to prove the correctness, the date of birth mentioned in the Matriculation Certificate has to be treated as a conclusive proof of the date of birth of the accused.
9. This Court is of the view that in the situation of present case, there was no necessity for medical examination of the accused as the inquiry was confined to the provisions of J.J. Act and Rules. In Ashwani Kumar Saxena (supra) the inquiry was conducted even there was High School Certificate on record. The Apex Court has deprecated the procedure adopted as in the present case by the Court below . In the facts and circumstances of the present case, the law cited by learned Counsel for the revisionist do not help him.
10. In view of discussions made above, this Court comes to the conclusion that the learned Appellate Court has dealt with the question of juvenility as per the procedure laid down in the J.J. Act and Rules and has rightly relied upon the date of birth mentioned in the High School Certificate, according to which the accused Asif Saifi is minor. I find no justifiable ground for making any interference in the impugned order.
11. Hence, this revision fails and is hereby dismissed. "
(9) In view of above, the trial court has committed manifest error in disposing of the application of the revisionist without holding an inquiry as stated above, so the revision is liable to be allowed.
(10) Accordingly, the revision is allowed. Order impugned dated 13.09.2018 passed by Fourth Additional Session Judge, Sultanpur passed in Session Trial No.433 of 2014 (State Versus Kamruddin and others) by which application for declaration of juvenile has been rejected by him arising from Case Crime No.255 of 2014, under Sections 302/34, 120B of I.P.C. and 3/25 Arms Act relating to Police Station - Dostpur, District - Sultanpur is set aside and the matter is remanded back to the trial court to decide the matter afresh in the lite of observation made above and conduct an inquiry under Section 7A of the Act, 2000 after giving opportunity of hearing to the revisionist.
(11) Since the matter is old one, it is expected that the inquiry shall be conducted without granting unnecessary adjournment to either of the parties.
Order Date :- 4.2.2020 S. Kumar