Rajasthan High Court - Jaipur
Sheo Narayan And Ors vs State on 26 May, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR D.B. CRIMINAL APPEAL No.698/2009 Sheo Narayan @ Chuttaya & Ors. vs. The State of Rajasthan Date of Order: 26th May, 2011. HON'BLE MR JUSTICE RAGHUVENDRA S.RATHORE HON'BLE DR. JUSTICE SMT. MEENA V. GOMBER Mr. Arvind Kumar Gupta, for the petitioner. Mr. Javed Choudhary, Public Prosecutor. Mr. Kapil Gupta, for the complainant. REPORTABLE BY THE COURT (Per Hon'ble Rathore, J.)
Sita Ram son of Govind Meena, one of the accused appellant in the aforesaid appeal, has filed this miscellaneous application (Inward No.4297/2011) under Section 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2000 with the prayer that he may be declared a juvenile on the date of occurrence. The procedure prescribed under the Act of 2000 and the Rules of 2007 be followed and he may be released from jail.
2. It has been averred in the application that the accused applicant was a minor on the date when the incident took place on 28.06.2004. Further, it is stated that the date of birth of the accused is 03.07.1986 and the same was so mentioned in the admission form submitted to Government Upper Primary School, Jagatpura, Block Niwai, District Tonk (Annexure-1). It is also stated that the date of birth of the accused applicant had been mentioned at serial No.91 in the admission register of Government Upper Primary School, Jagatpura, Block Niwai, as 03.07.1986. The accused applicant is said to have been admitted in the said school on 20.07.1990 (Annexure-2). It is also averred in the application that the certificate issued by Board of Secondary Education, Rajasthan, for the Secondary School Examination, 2002, also mentions 03.07.1986 as the date of birth of the applicant (Annexure-3). Therefore, it has been submitted by the learned counsel for the applicant that the accused applicant is a juvenile as he was below 18 years of age, on the day of occurrence.
3. The accused applicant has filed the aforesaid appeal, alongwith the other accused persons, challenging the judgment dated 30.06.2009 passed by the learned Additional District and Sessions Judge (Fast Track) Tonk in Sessions Case No.58/2004 whereby he has convicted the accused appellants for the offence, inter alia under Sections 302 and 302/149 IPC and sentenced him to imprisonment for life and a fine of Rs.5,000/-. The incident in this case had taken place on 28.06.2004 at about 8.00 am. and a report came to be lodged on the Parcha Bayan of Shaitan son of Ramniwas Meena recorded by Budha Lal, Sub Inspector on 28.06.2004. On the said report, a first information report (No.214/2004) came to be registered at Police Station Niwai, District Tonk for the offences, inter alia, under Section 302 IPC. It is to be noted that in the present case, three persons namely, Prahlad, Kailash and Mool Cand had died. During the course of investigation, the applicant Sita Ram came to be arrested on 04.07.2004 and his age had been mentioned as 20 years. Similarly in the information memo under Section 27 of the Evidence Act, which was prepared on 05.07.2004, the age of the applicant is mentioned as 19 years and in the statement of the accused Sita Ram recorded under Section 313 Cr.P.C. on 13.07.2005, the age had been mentioned as 19 years and Takhmina 23 years.
4. On 28.09.2004, the accused applicant had moved an application before the learned trial court with the prayer that the petitioner was less than 18 years of age at the time of incident and therefore order of his discharge may be passed immediately. Alongwith the said application, the applicant had filed a transfer certificate dated 4.7.1995 of the school at Jagatpura, P.S. Niwai. In the said certificate, the date of birth of Sita Ram Meena son of Govind Ram Meena was mentioned as 03.07.1986 and he was admitted in Class Ist on 20.07.1986. The learned trial court considered the application in detail and dismissed the same, vide his order dated 07.10.2004, holding that apart from the fact that the certificate filed in support of the application was a photo stat copy, the same is not reliable for the reason that the date of birth is mentioned as 03.07.1986 and the date of admission is 20.07.1986, meaning thereby that the accused had taken admission in the school only after 13 days of his birth. Further, he has mentioned that the accused had already attained the age of 18 years on 03.07.2004 whereas he was arrested on 04.07.2004 and produced before the competent authority on 05.07.2004. The learned trial court had relied on a judgment passed by the Hon'ble Supreme Court in the case of Arnit Das vs. State of Bihar, AIR 2000 Supreme Court 2264. It had also taken note of the fact that the age of the accused had been shown as 20 years in the memo of arrest and that he had not raised any objection with regard to his age either at the time of arrest, remand, during investigation, cognizance or at the time of committal.
5. It is noteworthy that the accused applicant had not challenged the order dated 07.10.2004 passed during the course of trial whereby his application for discharge as being minor at the time of incident was dismissed, before any higher court. The said order had attained finality. Thereafter, the trial proceeded and the same came to be concluded in the year 2009. At no point of time, during the intervening period, any such objection was taken by the accused. Moreover, alongwith the aforesaid appeal, the accused Sita Ram had filed an application before the High Court (256/2010) under Section 389 Cr.P.C. for suspension of sentence during the pendency of the appeal which came to be dismissed on 07.07.2010 but no ground of being a juvenile appears to have been raised or pressed before the Court.
6. The learned counsel for the accused applicant has submitted that from the documents filed alongwith the application, it is clear that the accused was below 18 years of age at the time of incident. Further, he has submitted that in view of the provision under Section 7(A) of the Act of 2000, the question that the accused is a juvenile can be raised before any court. He has also submitted that as per the relevant provision of law, juvenility of an accused is to be considered in accordance to the date on which the incident had taken place and not in accordance to the date of arrest or his production before the authorities concerned. He has submitted that an amendment in the Juvenile Justice (Care and Protection of Children) Act 2007 was brought into force on 26.10.2007, which can be applied on all the pending cases. In support of his submission, the learned counsel for the applicant has placed reliance on the case of Vikram Singh vs. State of Haryana, (2009) 13 SCC 645.
7. On the other hand, the learned Public Prosecutor assisted by the counsel for the complainant has seriously opposed the application filed by the accused applicant. He has submitted that at no point of time, including investigation or trial, except application filed on 28.09.2004, any objection had been raised by the accused applicant. On the contrary, all the entries made in the documents prepared during the investigation/ trial, the age of the accused applicant has been shown to be above 18 years. After dismissal of the application dated 28.09.2004 filed by the accused applicant on 07.10.2004, he had not challenged the said order before any higher court. Consequently, the order dated 07.10.2004 with regard to determination of the age of the accused applicant had attained finality and it does not lie with him to re-agitate the same question before this Court now at the stage of appeal. Therefore, it has been submitted that the question again raised by the accused applicant that he was a juvenile at the relevant time and as such he be so declared and released from jail deserves to be rejected. In support of his submissions, the learned Public Prosecutor has placed reliance on a decision of Patna High Court in the case of State of Bihar & Etc. vs. Neeraj Kumar & Etc., 2009 Cr.L.J. 858.
8. Now we proceed to take note of the legal aspect of the matter. Earlier the Juvenile Justice Act, 1986 was in operation. The said Act was later repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000. In August 2006, an amendment was made with regard to the age of a Juvenile in conflict with law. A juvenile was a one who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. The Juvenile Justice (Care and Protection of Children) Rules, 2007 were brought into force on 26.10.2007.
Under the Act of 2000 where an inquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child ceases to be such, then, notwithstanding anything contained in the Act or in any other law, the inquiry may be continued and orders may be passed in respect of such person as if such person had continued to be a juvenile or a child. The powers conferred on the Board by or under the Act may also be exercised by the Court and the Court of Sessions, when the proceedings comes before them in appeal, revision or otherwise. Whenever a claim of juvenility was raised before any Court or a court was of the opinion that an accused person was a juvenile on the date of commission of the offence, the court is to held an inquiry and take such evidence, as may be necessary, for determination of the age of such person and shall record a finding to the effect whether the person is a juvenile or not was to be made. The claim for juvenility can be raised before any court and was to be recognised at any stage, even after final disposal of the case, and such claim was to be determined in accordance to the provision of the Act and the Rules, even if the juvenile has ceased to be so on or before the date of commencement of the Act of 2000.
When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested and brought before the Board such person shall, notwithstanding anything contained in the Code of Criminal Procedure or in any other law, is to be released on bail forthwith, with or without surety. But such person is not to be released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.
9. Irrespective of the provisions of Section 223 of Cr.P.C. or any other law, no Juvenile is to be charged with or tried for any offence together with a person who is not a juvenile. If a juvenile is accused of an offence for which under Section 223 Cr.P.C. or any other law, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together, the board taking cognizance of that offence has to direct separate trial of the juvenile and other person.
Where it appears to a competent authority that person brought before it under any of the provisions of the act is a juvenile, the competent authority shall make due inquiry so as to the age of that person and shall take such evidence as may be necessary (but not an affidavit), and shall record a finding as to whether the person is a juvenile or not, stating his age. No order of such authority would become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of Act of 2000 be deemed to be the true age of that person.
10. A remedy by way of appeal is also provided to a person who is aggrieved by an order made by a competent authority, within thirty days from such order, to the Court of Sessions. No second appeal lies against the order passed by the Court of Sessions. However, the High Court can either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any competent authority or Court of Sessions 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 it thinks fit. Such an order is to be passed by a High Court only after giving a reasonable opportunity of hearing to the person concerned.
Any competent authority may, on an application received in this behalf, amend any order as to the institution to which a juvenile is to be sent or as to the person under whose care or supervision a juvenile is to be placed under the Act. There shall be at least two members and the parties or its defence present during the course of hearing for passing an amendment in relation to any of its order.
11. The relevant provisions of the Act of 2000 are as follows:-
2(k)- juvenile or child means a person who has not completed eighteenth year of age;
2(1)- "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;
3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile.- Where an inquiry has been initiated against a juvenile in cinflicit with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile or a child.
6. Powers of Juvenile Justice Board.-(1) Where a Board has been constituted for any district (omitted 33 of 2006), such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law.
(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the court of Session, when the proceedings comes before then in appeal, revision or otherwise.
7(A). 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.
12. Bail of juvenile.-(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a Probation Officer or under the care of any fit institution or fit person but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that this released would defeat the ends of justice.
(2) When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order.
18. No joint proceeding of juvenile and person not a juvenile.- (1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile.
(2) If a juvenile is accused of an offence for which under section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in subsection (1), have been charged and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person.
49. Presumption and determination of age;- (1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority 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.
52. Appeals.- (1) Subject to the provisions of this section, any person aggrieved by an order made by a competent authority under this Act may, within thirty days from the date of such order, prefer an appeal to the Court of Session;
Provided that the Court of Session 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.
(2) No appeal shall lie from -
(a) any order of acquittal made by the Board in respect of a juvenile alleged to have committed an offence; or
(b) any order made by a Committee in respect of a finding that a person is not a neglected juvenile.
(3) No second appeal shall lie from any order of the Court of Session passed in appeal under this section.
53. Revision.- The High Court may, at any time, either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any competent authority or Court of Session 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.
55. Power to amend orders.-(1) Without prejudice to the provisions for appeal and revision under this Act, any competent authority may, on an application received in this behalf, amend any order as to the institution to which a juvenile or the child is to be sent or as to the person under whose care or supervision a juvenile or the child is to be placed under this Act.
Provided that there shall be at least two members and the parties or its defence present during the course of hearing for passing an amendment in relation to any of its order.
(2) Clerical mistakes in orders passed by a competent authority or errors arising therein from any accidental slip or omission may, at any time, be corrected by the competent authority either on its own motion or on an application received in this behalf.
12. In the instant case, an application was filed by the accused before the trial court on 28.09.2004 stating that he was a juvenile and a prayer was made for declaration to that effect. Alongwith the said application, a documentary proof was also submitted. The learned trial court had examined the matter in detail and after giving cogent reasons dismissed the application, holding that the accused was not a juvenile. Now an application with same prayer has been filed before this Court, primarily on the ground that some more documentary proof have been found by the accused and therefore the question of his juvenility be examined again. As has been provided under the Act of 2000 that once age of a persons claiming to be juvenile is determined then such order passed by a competent authority shall not be deemed to have become invalid merely by any subsequent proof that the person in respect of whom an order has been passed is not a juvenile. Likewise, in our considered opinion when once the question of juvenility of an accused, on an application filed by him with proof, has been decided against him by the Court and held that he was not a juvenile then the question cannot be re-agitated by such person and the order cannot be amended by any authority/ Court.
13. In the case of Arnit Das (supra), one of the questions considered by the Hon'ble Apex Court was whether the finding with regard to the age arrived at by the court can be sustained. The said question was answered in para 24, which reads as under:-
24. So far as the finding regarding the age of the appellant is concerned it is based on appreciation of evidence and arrived at after taking into consideration of the material available on record and valid reasons having been assigned for it. The finding arrived at by the learned A.C.J.M. has been maintained by the Sessions Court in appeal and the High Court in revision. We find no case having been made out for interfering therewith.
It is noteworthy that in the present case, the question with regard to the age of the accused had already been considered and the application filed by him had been dismissed by the court below and the said finding has been accepted by him as no further challenge or objection had been made before any higher court or at any later point of time. The trial thereafter stood concluded in the year 2009. The aforesaid appeal had been filed against the judgment passed by the trial Court and an application for suspension of sentence, under Section 389 Cr.P.C., was also considered and dismissed by this Court on 07.07.2010. Now it does not lie with the accused applicant to question the order passed by the court below on 7.10.2004 or to pray for reconsideration of the question with regard to his age, once the order passed by the trial court has attained finality as well as the finding given by the learned trial court has been accepted by him because it was not challenged before any higher court. As a matter of fact, it is rather a case of acquiescence by the accused. In such a situation, he cannot be permitted to raise the question again.
14. Moreover, in case the order passed by the learned trial court had been challenged at the appropriate time and if the plea of the accused had been accepted by the higher court and the order passed by the learned trial court had been reversed, then other consequences under the Act of 2000, as for instance, holding of a separate trial etc. would have followed. But the fact remains that after passing of the order by the learned trial court, on the application filed by the accused in the year 2004, the trial of the applicant proceeded alongwith other accused persons and the same came to be concluded in the year 2009, when the judgment impugned in the present appeal had come to be passed.
15. In the case of Sidharth, etc. vs. State of Bihar, 2005 Cr.L.J. 4499, the Hon'ble Supreme Court had considered a case of similar nature, when the appellant Arnit Das was produced before the Chief Judicial Magistrate, he had stated that his age was below 16 years and therefore he was entitled for benefit under the Juvenile Justice Act, 1986. According to the appellant Arnit Das he had not attained the age of 16 years on the date of occurrence. The said question was considered by the juvenile court wherein accused had produced oral and documentary evidence. The juvenile court came to the conclusion that the appellant Arnit Das was above 16 years of age as on the date of occurrence and therefore he was not entitled to benefit under the Act of 1986. The appellant Arnit Das then preferred an appeal before the Sessions Court challenging the order of the Juvenile Court. But the said appeal came to be dismissed and thereafter the accused filed a revision before the High Court of Patna. The learned High Court also held the appellant to be above 16 years of age on the date of occurrence. The accused then preferred an S.L.P. before the Hon'ble Supreme Court, who came to the conclusion that so far as the finding with regard to age of the appellant was concerned, the same was based on appreciation of evidence after taking into consideration the material available on record and valid reasons had been assigned for it. The said finding of the learned Magistrate was maintained by the higher courts. Therefore, the Hon'ble Apex Court held that no case for interfering in the orders passed by the courts below was made out.
However, the said question was again raised in the appeal filed against the conviction and sentence awarded to the accused appellant. The counsel for the appellant had urged before the Hon'ble Apex Court that the document produced by the appellant before the juvenile court was not properly considered and there was serious error in the finding arrived at by the Chief Judicial Magistrate regarding the determination of the age of the appellant. Therefore, it was held that appellant cannot challenge that finding as the decision had become conclusive and final as the Juvenile Act, 2000 also cannot be applied as he was not juvenile as defined under the Act. The Hon'ble Apex Court, in para 9, had observed as under:-
9. The learned Counsel for this appellant urged before us that the documents produced by the appellant before the Juvenile Court were not properly considered and there was a serious error in the finding of the Chief Judicial Magistrate regarding the determination of the age of this appellant. Appellant Arnit Das challenged the finding of the Chief Judicial Magistrate, but he could not succeed and at this stage the appellant cannot challenge that finding as the decision has become conclusive and final and the Juvenile Justice Act 2000 also cannot be applied as he would not be a juvenile as defined under that Act.
16. So far as the case of Vikram Singh (supra) relied upon by the counsel for the accused applicant is concerned, it was a case where the Hon'ble Apex Court, while confirming the convicting and considering the period of custody already suffered by the appellant, had directed that he was to be released from custody forthwith. Furthermore, considering the facts and circumstances of that case, it was observed that Normally we would have remitted the matter to be dealt with by the appropriate court. But considering the long passage of time and period of custody, we have passed the present order. However, it is to be noted that in the said case there was a material distinction as there had not been any order passed by the court below rejecting the application of accused for considering the question of his age and that such an order had attained finality. No doubt that the question of juvenility of the accused was considered by the Hon'ble Apex Court under the provision of the Act of 2000 and the Rules of 2007 but that was done because the accused had raised the said plea before it.
It was not a case where the question of age of the accused had been considered and rejected earlier by the court below which was re-agitated before the Supreme Court and such an order was set aside by it. Therefore, the order passed in the case of Vikram Singh (supra) was in a totally different fact situation than the one before us.
17. In reply to the judgment of Vikram Singh (supra) relied upon by the counsel for the accused appellant, the prosecution has placed before us the case of Murari Thakur & Anr. vs. State of Bihar, 2007 RCC (SC) 170 and submitted that the plea with regard to benefit under Juvenile Justice Act, which was never raised before the trial court or the High Court, cannot be allowed to be raised for the first time before the Hon'ble Supreme Court especially the question of age being a question of fact on which prosecution evidence, cross-examination, etc. are required to be recorded.
18. For the aforesaid reasons, the relevant provision of law and the principle laid down by the Hon'ble Apex Court, in the cases referred above, we are of the considered opinion that the question of juvenility of the accused cannot be raised again before this Court in the instant appeal when the same had already been considered by the learned trial court, on an application filed by the accused himself and had been rejected. Moreover, the finding arrived at by the learned trial court was rather accepted by the accused as the same had not been challenged by him before any higher court and the order dated 7.10.2004 had attained finality. In so far as some additional documents, with regard to the age of the accused applicant, produced before this Court and never before the learned trial court is concerned, it would suffice to say that the same were not only in his knowledge or his parents but were rather within their reach and possession. It is pertinent to mention here that a bare perusal of the documents produced before us goes to show that it bears some over-writing / interpolation which could have been more appropriately considered and appreciated by leading evidence before the court below by filing the same at the appropriate time.
19. Consequently, the miscellaneous application (Inward No.4297/2011) filed by the accused applicant has no merit and the same is accordingly dismissed.
(DR. MEENA V. GOMBER),J. (RAGHUVENDRA S.RATHORE),J. tikam daiya/