Dwarika vs State of U.P.

Raj Mani Chauhan, J.—Supplementary-affidavit filed by the learned Counsel for the revisionist, is taken on record.

Heard learned Counsel for the revisionist and learned A.G.A. for the State.

This revision u/s 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ''the Act'') has been directed by the accused revisionist against the order dated 13.8.2009, passed by the learned Additional Sessions Judge (F.T.C.-II), Ambedkar Nagar in Sessions Trial No. 20 of 2009 (Crime No. 245 of 2008) State v. Dwarika, u/s 302/201, I.P.C., police station Mahrua, district Ambedkar Nagar whereby learned Additional Sessions Judge has rejected the application filed by the accused-revisionist to declare him juvenile.

In this revision the only legal question involved for consideration is whether the learned Additional Sessions Judge could reject the application of the accused-revisionist to declare him juvenile without making any inquiry as required under the Act? This question can be decided at the admission stage without calling record from the trial Court.

Therefore, with the consent of learned Counsel for the revisionist and learned A.G.A., the revision is being finally disposed of at the admission stage.

The relevant facts giving rise to the present revision in brief are that on the written report of Smt. Gyanmati (complainant) wife of Nand Lal, resident of Rampur Nonshila, police station Mahrua, district Ambedkar Nagar, the police of police station Mahrua, district Ambedkar Nagar registered a case against the accused Sanjay u/s 302/201, I.P.C. at Crime No. 245 of 2008 for investigation. The name of accused-revisionist Dwarika and one Arjun came into light during investigation. The Investigating Officer found the accused Sanjay as juvenile and submitted charge-sheet against the accused before Juvenile Justice Board. The Investigating Officer on the basis of evidence collected by him found the involvement of accused Dwarika and Arjun also in commission of murder of the deceased. Consequently, he submitted charge-sheet against the accused in the Court of Chief Judicial Magistrate, Ambedkar Nagar, who on the basis of charge-sheet submitted by the Investigating Officer, took cognizance of the offence and committed case to the Court of Sessions for trial which gave rise to the Sessions Trial No. 20 of 2009 State v. Dwarika and Anr. the session trial was transferred by the Sessions Judge, Ambedkar Nagar to the Court of Additional Sessions Judge/Fast Track Court No. II, Ambedkar Nagar for hearing. The learned Additional Sessions Judge vide order dated 26.3.2009 framed the charges under Sections 302/34 and 201/34, I.P.C. against the accused for trial. However, the accused-revisionist Dwarika, thereafter moved an application on 13.8.2009 to declare him juvenile under the Act with the allegation that on the date of occurrence his date of birth was 20.5.1991 as per school certificate, i.e., he was 17 years and three months old, therefore, he was juvenile within the meaning of Section 7A of the Act. The trial Court without considering his application on merits, rejected the same summarily by the impugned order with the observation that charges against the accused had already been framed keeping in view the entire facts relating to the occurrence as well as the age of the accused who was found to be major.

The learned Counsel for the revisionist contends that the trial Court framed charges against the accused-revisionist on 6.3.2009, thereafter he moved an application on 13.8.2009 before the trial Court to declare him juvenile under the Act with the allegation that the occurrence was alleged to have taken place on 23.8.2008. At that time, his age was 17 years and three months as per school certificate. His date of birth was recorded in Primary School, Mathani as 28.5.1991. In this way, he was juvenile within the meaning of Section 7A of the Act on the date of occurrence. His case, therefore, be sent to Juvenile Justice Board but the trial Court without considering the application moved by the accused on merit and without making any inquiry, as provided u/s 7A of the Act and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, (hereinafter called as ''the Rules'') had straightway rejected his application by the impugned order which is illegal.

The learned Counsel for the revisionist further submits that as per provisions of Section 7A of the Act, if any accused facing trial before any criminal Court claims to be juvenile, the trial Court is required to make an inquiry into the matter as to whether the accused is juvenile or not? The procedure for making an inquiry is laid down under Rule 12 of the Rules. The accused claimed himself to be juvenile before the trial Court, therefore, trial Court was under obligation to make an inquiry about the fact as to whether the accused was juvenile on the date of occurrence. If after the inquiry accused-revisionist was found to be juvenile, his case should have been sent to Juvenile Justice Board. If he was not found to be juvenile, only then the Court could proceed against the accused. His application could not be rejected by the trial Court without making any inquiry as provided under the Rules. But the learned Additional Sessions Judge without making any inquiry has straightway rejected his application by the impugned order which is illegal and liable to be set aside.

Sri. V.S. Srivastava, learned A.G.A. fairly accepts that if the accused had raised any claim before the trial Court that he was juvenile on the date of occurrence, the trial Court was required to make an inquiry into the matter and to record a clear finding as to whether he was juvenile on the date of occurrence or not. Thereafter, trial Court should have proceeded in the matter in accordance with law. The trial Court has rejected the application of the accused-revisionist for declaring him juvenile without following the mandatory procedure provided under the Act as well as under the Rules.

I have given thoughtful consideration to the submissions of the learned Counsel for the revisionist and learned A.G.A. and gone through the relevant provisions under the Act on the point in issue.

From a perusal of the impugned order, it appears that the trial Court has rejected the application moved by the accused-revisionist to declare him juvenile on the ground that charges against the accused had already been framed and at the time of framing of charge, the Court had considered the record of the case and the documents submitted by the prosecution as well as the fact that the accused was major on the date of occurrence. The accused-revisionist has filed certified copy of the Court''s order dated 6.3.2009, whereby the trial Court has ordered to frame charges against the accused-revisionist under Sections 302/34 and 201/34, I.P.C. He has also filed certified copy of the charge framed by the trial Court. From a perusal of the trial Court''s order dated 6.3.2009, it appears that the trial Court on the basis of document available on record found, prima facie, ground to frame charges under Sections 302/34 and 201/34, I.P.C. against the accused. The trial Court even did not observe that the accused was found to be major. But the trial Court while passing the impugned order has observed that at the time of framing of charge the accused was major. This observation of the trial Court appears to be against the record. The learned Additional Sessions Judge, without going through the order dated 6.3.2009 has wrongly observed in the impugned order that the accused was major at the time of occurrence when the charge was framed against him.

Section 7A of the Act provides the procedure to be followed when the claim of juvenility is raised by the accused before any Court which is being extracted below:

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 recognized 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.

It is clear from the above provision that when an accused facing trial before any criminal Court claims to be juvenile at any stage of trial or even after final disposal of the case, his claim will be determined by the Court in terms of the provisions contained in the Act and the rules made thereunder. This provision is mandatory which cannot be overlooked by the trial Court.

In this case the accused has raised claim of juvenility by moving the application dated 13.8.2009, before the trial Court, therefore, Court was required to follow procedure prescribed u/s 7A of the Act and was required to make inquiry into the matter and record clear finding as to whether the accused was juvenile on the date of occurrence. Rule 12 of the Rules lays down the procedure how the trial Court will determine the age of accused which read as under:

Procedure to be followed in determination of age.-(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie, on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) 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.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in Sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in Sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in Sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.

In the present case, the learned Additional Sessions Judge was required to follow the procedure prescribed u/s 7A of the Act and Rule 12 of the Rules to determine the age of the accused at the time of occurrence, but he instead of determining his age on the date of occurrence and declaring him juvenile as the case may be has summarily rejected his application by the impugned order which is apparently illegal and liable to be set aside and the revision deserves to succeed.

The revision is, therefore, allowed and the impugned order dated 13.8.2009, passed by Additional Sessions Judge/F.T.C.-II, Ambedkar Nagar rejecting the application of the accused to declare him juvenile is set aside. The trial Court is directed to decide the application of the accused-revisionist for declaring him to juvenile afresh keeping in view the observation made above.