Chandra Pal vs State of U.P.and another

Ravindra Singh, J.—This application has been preferred by the applicant Chandrapal with a prayer to set aside the order dated 23.2.2011 passed by learned Addl. Sessions Judge/FTC3, Badaun in case No. 1 of 2011 (S.T. No. 536 of 2010) under sections 376, 506 IPC whereby the application filed by the applicant to declare him juvenile has been rejected.

The facts in brief of this case are that the applicant Chandrapal has been named in FIR lodged by the O.P. No. 2 Smt. Subhadra on 2.10.2009 at 11.00 A.M. at P.S. Gunnaur/Rajpura, District Badaun in case crime No. 768 of 2009 under sections 376, 506 IPC. The allegation against the applicant is that he committed the rape with Km. Omwati aged about 14 years, at pistol point on 28.9.2009 at about 7.00 P.M. After investigation the chargesheet has been submitted against the applicant for the offence punishable under sections 376, 506 IPC on which the learned Magistrate has taken the cognizance. Thereafter the case has been committed to the court of sessions, it was pending in the court of learned Addl. Sessions Judge/FTC3, Badaun vide S.T. No. 536 of 2010. During pendency of the above mentioned sessions trial the application was moved by the applicant claiming himself to be juvenile with a prayer that he may be declared juvenile, thereafter the trial court hold an inquiry to record his opinion with regard to the claim of the applicant. In inquiry the statement of father of the applicant namely Rajendra was recorded as C.W. 1, the statement of Mahendra Pal Sharma and the statement of the applicant Chandrapal were recorded as C.W. 2 and C.W. 3 respectively, the statement of Dr. Sher Singh Kakkar was recorded as C.W. 4, the statement of Dr. G.B. Lal was recorded as C.W. 5, The statement of Dr. M.K. Singh, C.M.O. Badaun was recorded as C.W. 6. After holding inquiry the trial court has come to the conclusion that applicant was appearing aged about 22 years and on the day of the alleged incident also the applicant was aged about 20 years. Therefore, the application filed by the applicant was rejected on 23.2.2011. Being aggrieved from the order dated 23.2.2011 the applicant has filed the present application under section 482 Cr.P.C.

Heard Sri Sunil Kumar, learned counsel for the applicant and learned A.G.A. for the State of U.P.

It is contended by learned counsel for the applicant that the alleged occurrence has taken place on 28.9.2009. On the day of the alleged occurrence the applicant was aged about 15 years, the applicant is uneducated person. The plea of the juvenile has been taken by the applicant in the trial court on 15.3.2010 by filing the application along with affidavit of Rajendra, the father of the applicant. In support of that application the copy of family register has been filed showing that the applicant was juvenile on the day of the alleged incident. But the learned trial court itself hold an inquiry about the juvenile conflict whereas Juvenile Justice Board was constituted in Badaun district by notification dated 16.8.2010. In such circumstances, the trial court has committed an error by holding an inquiry itself and by not referring the matter to Juvenile Justice Board, Badaun. The trial court was not having the jurisdiction to decide the issue of juvenile, but without any proper reason and by holding an inquiry trial court has decided this issue by disclosing the opinion that applicant was not juvenile on the day of the alleged incident and the application filed by the applicant was rejected on 23.2.2011. The impugned order dated 23.2.2011 is illegal, the same may be set aside.

In reply of the above contention, it is submitted by learned A.G.A. that the trial of the applicant is pending in the court of learned Addl. Sessions Judge/FTC3, Badaun where the plea of the juvenile was taken by the applicant by way of moving an application. The trial court was under obligation to disclose his opinion with regard to the plea of juvenile for which the trial court has hold an inquiry. The trial court has not committed any error in holding an inquiry and in disclosing the opinion that the applicant was not juvenile on the day of the alleged incident. The trial court has not committed any error in rejecting the application filed by the applicant vide order dated 23.2.2011. The trial court was having the jurisdiction to pass an order on the application filed by the applicant in which the plea of juvenile was taken. There is no law that without disclosing the opinion with regard to the plea of juvenile and on filing of the application the matter shall be referred to the Juvenile Justice Board. The present application is devoid of merit, the same may be dismissed.

After considering the submissions made by learned counsel for the applicant and learned A.G.A. it appears that the following issues are involved in the present case:

(i) whether merely filing on application or plea of juvenile taken by any accused, the matter may be referred to Juvenile Justice Board.

(ii) Whether competent court where plea of the juvenile is taken is having the jurisdiction to disclose the opinion about the plea of juvenile by way of holding an inquiry.

To deal with above mentioned issues the perusal of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 are necessarily required.

From the perusal of the above mentioned Act there is no such provision that either on the application moved by the accused taken the plea of the juvenile or merely on the basis of the plea of the juvenile taken by the accused without disclosing the opinion by the competent authority, the matter shall be referred to Juvenile Justice Board whereas the the provision of above mentioned Act provide otherwise. For this purpose the provision of section 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000 are very relevant which reads as under:

Procedure to be followed by a Magistrate not empowered under the Act.(1) When any Magistrate not empowered to exercise the powers of a Board under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence), is a juvenile or the child, he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceedings to the competent authority having jurisdiction over the proceeding.

(2) The competent authority to which the proceeding is forwarded under subsection (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it.

According to the section 7 of the Act it is necessary for any Magistrate not empowered to exercise the powers of a Board to disclose the opinion that a person brought before him under any of the provision of this Act is a juvenile or child, without any delay record such opinion and forward the juvenile or the child and the record of the proceedings of the competent authority having jurisdiction over the proceedings. It shows that for such purpose the recording of such opinion is necessary, for recording such opinion the authority concerned may hold an inquiry also for his prima facie satisfaction. The provision of section 6 of the Act are also explanatory. The provision of section 6(2) of the Act are conferred the power of the High Court and the Court of Sessions, as the powers conferred on the Board by or under this Act. Section 6 of the Act reads as under:

Powers of Juvenile Justice Board. (1) Where a Board has been constituted for any district or a group of districts, 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 without 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 Sessions, when the proceeding comes before them in appeal, revision or otherwise.

The section 49 of the Act are also relevant to decide this issue. Section 49 of the Act reads as under:

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 taken 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.

The section 49 of the Act empowers the authority concerned to hold a due inquiry to record the findings whether person is juvenile or the child or not. The first issue involved in the present case that whether only on the basis of the plea of the juvenile taken by the accused the matter should be referred to the Juvenile Justice Board without disclosing the opinion with regard to the juvenile or child. There is no such provision under the Act that without disclosing the opinion to be juvenile or child the matter may be referred to the Juvenile Justice Board by any Magistrate or authority concerned. In case such plea is taken the court concerned is under obligation to disclose his opinion to be a juvenile or child in referring the matter tot he juvenile Justice Board and for disclosing the opinion about the plea of the juvenile or child the Magistrate or the authority concerned may adopt the procedure of the inquiry also. In he present case also the plea of the juvenile has been taken for which the trial court has hold an inquiry to disclose his opinion. The learned trial court has not committed any error in holding the inquiry for the purpose of disclosing the opinion. The court concerned is under obligation to dispose of the application if moved by the accused taking the plea of the juvenile and the court concerned is under obligation to disclose the opinion whether the accused who has taken the plea of the juvenile is appears to be juvenile or not. The the present case also the trial court has adopted the procedure for his satisfaction to disclose the opinion with regard to plea of the juvenile. The trial court has adopted the procedure for disclosing the opinion and has come to the conclusion that on the day of the alleged incident the applicant was not juvenile and has rejected the application filed by the applicant vide order dated 23.2.2011. The order dated 23.2.2011 is will reasoned order. It does not require any interference by this court. Therefore, the order dated 23.2.2011 is refused.

Accordingly this application is dismissed.