Kishan Ram vs State of Uttaranchal and Others

Servesh Kumar Gupta, J.—This criminal revision has been filed with the prayer to set aside the order dated 20.01.2005 passed by Chief Judicial Magistrate, Almora in criminal case No. 362 of 2004 whereby the learned Magistrate ordered to level charge of Section 224 Indian Penal Code against revisionist Kishan Ram.

Having heard learned Counsel for the revisionist and learned Brief Holder, it transpires that one Smt. Jeewanti Devi lodged an FIR on 03.04.2000 in Police Station Bageshwar informing that her daughter Km. Radha, a student of VII Standard, is missing from her house. She apprehended that Km. Radha has been enticed away by revisionist Kishan Ram, son of Har Ram. The girl was missing since 01.04.2000. This FIR bore the crime No. 2 of 2000 u/s 363, 366 Indian Penal Code.

Police in order to work out the matter made investigation and name of revisionist was found as perpetrator of the crime. Revisionist Kishan Ram was apprehended by the police and was being carried for medical examination but he escaped from the custody of police Constable Chawan Singh. On the information given by Constable Chawan Singh in Kotwali Almora, another FIR was lodged on dated 10.07.2000 u/s 224 Indian Penal Code stating that accused revisionist escaped from the legal custody on 10.07.2000. The police made massive search of revisionist Kishan Ram. Revisionist Kishan Ram in order to evade the arrest by police surrendered on 27.07.2004 and sought bail. He claimed his date of birth as 07.08.1984, on the basis of High School Certificate, learned CJM, Almora granted him bail after surrender. It has been contended on behalf of the revisionist that he moved an application to the concerned Magistrate/Board to declare him juvenile on the basis of date of birth, which was mentioned in his Matriculation Certificate but the Magistrate did not dispose of his application so he was constrained to move criminal misc. application No. 347 of 2004 u/s 482 Code of Criminal Procedure in this Court. This Court on 11.08.2004 directed the Chief Judicial Magistrate to record an opinion as contemplated u/s 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000 before proceeding against the revisionist. This Section 7 envisages to record Magistrate''s opinion regarding the age of the person claiming himself as juvenile or the child.

In compliance of the order of this Court, the Magistrate, Bageshwar recorded his opinion regarding the age of revisionist Kishan Ram being 15 year 7 month 24 day on the date of incident dated 01.04.2000 (this date pertains to the alleged offence u/s 363, 366 Indian Penal Code) and was of the view that on the basis of certificate produced by revisionist, he is a juvenile, as contemplated under the Act.

Thereafter, inquiry was conducted by Juvenile Justice Board, Board, which too by order dated 21.12.2004 declared him juvenile. Later, the Chief Judicial Magistrate passed the impugned order dated 20.01.2005 for framing charge of Section 224 Indian Penal Code, all the same revisionist was a juvenile.

It has been argued by learned Counsel for the revisionist that Section 22 of the Juvenile Justice (Care and Protection of Children) Act, 2000 envisages that "... and no proceeding shall be instituted in respect of the juvenile by reason of such escape...." There was an analogous provision in Section 50 of old Act (Juvenile Justice Act, 1986) which too provides that "... no proceeding shall be instituted in respect of the juvenile by reason of such escape....". Although the old Act in its entirety has been repealed by virtue of Section 69 of the new Act.

Learned Brief Holder argued that cause of action for the offence u/s 224 Indian Penal Code arose on 10.07.2000 while new Act came into force on 01.04.2001 so the matter should be remitted back to the court of Chief Judicial Magistrate, Almora for passing appropriate orders.

This contention of the learned Brief Holder is not acceptable for two reasons. Firstly, in the old Act also the provision of Section 50 exonerated a juvenile from act of legal proceedings, which were purported to be arisen by reason of his escape from legal custody. Secondly, the Hon''ble Apex Court in case of Bijender Singh Vs. State of Haryana and Another, has held that embargo of giving a retrospective effect to a Statute arises only when it takes away vested rights of a person. By reasons of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 no vested rights in a person has been taken away but thereby only an additional protection has been provided to a juvenile. Provisions of the 2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age on 01.04.2001.

It is clear that new Act did not take away vested rights of a juvenile, which were available to him u/s 50 of the old Act. Besides the same right is also available u/s 22 of the new Act. Therefore, in view of the existing provisions as discussed above, no legal proceeding can be initiated against a juvenile for his escape from the legal custody. All that which can be done against him is to send information to the Board, which passed the order declaring him juvenile and such other action may be taken which is deemed necessary under the provisions of the Act.

In view of the above, this revision has force. Impugned order of Chief Judicial Magistrate, Almora dated 20.01.2005 is liable to be quashed. Accordingly, revision is allowed. Order of Chief Judicial Magistrate, Almora dated 20.01.2005 directing to frame charge against the revisionist u/s 224 Indian Penal Code is hereby quashed.