Narsingh Narayan Dubey and Another vs State of Uttarakhand and Another

Servesh Kumar Gupta, J.—By way of this Criminal Miscellaneous Application, the challenge is made to the order dated 27.7.2009, rendered by the Additional Sessions Judge/III F.T.C., Haridwar, holding Amit Kumar, son of Shankar Prasad (private Respondent No. 2) to be a juvenile. After declaring Amit Kumar as juvenile, his trial was directed to be separated from the main Sessions Trial No. 168/2007, State v. Satya Prakash and Ors., and it was sent to Juvenile Board to proceed further with the trial against Amit Kumar. This order has been assailed by Jagganath Tiwari, the complainant, who had lodged the First Information Report on 13.11.2006 against Amit Kumar as well as two other accused persons (in all three) for the offence of Section 394 & 302 Indian Penal Code.

The investigation was made and the chargesheet was submitted against the accused persons, namely, Satya Prakash Pande, Amit Kumar and Pappu Kumar, all residents of District West Champaran, Bihar. During the course of investigation, a 9 mm pistol and ten live cartridges were also recovered from the possession of accused Amit Kumar, wherefor a separate sanction dated 11.1.2007 of the concerned District Magistrate was obtained to initiate the prosecution u/s 25 of the Arms Act against the accused Amit Kumar.

During the pendency of the trial, Amit Kumar moved an application to declare him juvenile on the basis of a birth certificate got him issued by the Registrar, Births and Deaths, Betiah Nagar Parishad (West Champaran). On submission of this certificate, the court below got verified the issuance of this certificate by writing a letter to the authority concerned, and after receiving the response therefrom, endorsing the issuance of the same from the said office, Amit Kumar was declared juvenile vide the order impugned in this petition.

Having heard learned Counsel for the parties and on considering the pros and cons of the case, it is amply clear that the aforesaid certificate adverts the date 3.7.2008 as the date of registration of birth in the said office, and the certificate was issued just two days after i.e. on 5.7.2008, while the incident is dated 13.11.2006. Thus the alleged incident took place more than a year and half prior to the issuance of the said certificate. Thus, it is clear that Amit Kumar moved the application for registration of his birth on 3.7.2008 i.e. after the alleged date of incident, claiming his date of birth to be 15.11.1990. Therewithal the name as this certificate discloses is "Om Prakash Sah @ Amit", while in the FIR as well as in the chargesheet, the name of the accused is "Amit Kumar". Besides, the name of his father as disclosed in the certificate is "Gauri Shankar Sah", while it is "Shankar Prasad" in the FIR, nay the place of his residence as disclosed in the certificate is only district "West Champaran, Tehsil Betiah". No other further specific particulars are there in the certificate, whereas in the chargesheet as well as in the FIR his residence is mentioned as "Mohalla Uljhantola, PS Muffasil, District West Champaran".

Undoubtedly, the enquiry to determine the juvenility of an accused can be conducted at any stage of the trial as envisaged u/s 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000. But just believing a certificate as furnished by the accused person on the basis of verification of its genuineness of issuance only is not enough to declare the accused a juvenile. It does not amount to an enquiry as has been prescribed under the relevant provisions of the Act. Needless to say that the accused Amit Kumar applied for registration of his birth on 3.7.2008 in the concerned office, while the occurrence was of 13.11.2006. So his oblique motive to get his birth registered was to make him enable to take the plea of juvenility, which is obvious in the above facts and circumstances. In addition to that there are so many other incongruities and discrepancies in the contents of this certificate, viz, the name of the accused, name of his father as well as the place of his birth, which are enough to show that it has been obtained by an act of knavery in collusion with the concerned ministerial staff. The learned Judge has committed a grave error while declaring Amit Kumar as juvenile by placing reliance on this certificate.

It would be also significant to note here that the FIR was lodged against the accused persons for the offences punishable u/s 394 & 302 Indian Penal Code, but after investigation, they have been chargesheeted u/s 394, 302, 34, 506, 411, 120B Indian Penal Code. Apparently, the charges are very serious. Meticulous care and a thorough enquiry were required at the end of the learned Judge before determining the plea of juvenility of Amit Kumar, but he failed to do so.

For the reasons recorded above, the impugned order dated 27.7.2009 is not sustainable and is liable to be quashed. The same is hereby quashed. File for conducting separate trial in respect of Amit Kumar, if sent to Juvenile Board, will be requisitioned back by the court of Sessions, where the accused Amit Kumar shall be tried as an adult.

Registry is directed to inform the court concerned accordingly.