Om Prakash vs State of U.P. and Another

Vinod Prasad, J.—Om Prakash, the revisionist, informant of Crime No. 60 of 2006, u/s 302, I.P.C., P.S. Chetganj district Varanasi has questioned the impugned order dated 13.10.2006 passed by Principal Judge, Juvenile Justice Board, Ram Nagar, district Varanasi (hereinafter referred to as The Board) in Crime No. 60 of 2006 as well as the order dated 12.12.2006 passed by lower appellate court, Session''s Judge, district Varanasi in Criminal Appeal No. 113 of 2006, Om Prakash v. State of U.P. Criminal Appeal No. 113 of 2006, by which lower appellate court has rejected the appeal filed by the revisionists u/s 52 of Juvenile Justice Act, (hereinafter called as the Act) challenging the aforesaid order by the Board. By impugned order dated 13.10 2006 Board has rejected the prayer of the revisionist to revert back the case of accused Respondent Amit Singh to Chief Judicial Magistrate, Varanasi for conducting an inquiry as to whether the said accused is a juvenile or not? The said order has been confirmed in appeal by Session''s Judge, Varanasi by passing the impugned order.

The short narration of facts are that on 6.4.2006 at about 9 p.m. accused Respondent Amit Singh alongwith co accused Arvind took the deceased Ravi Kumar son of informant revisionist from the medical shop to a Lane in Andhrapul district Varanasi where deceased was firstly abused and then he was fired upon by Babu Lal alias Pappu and Arvind aforesaid. While injured was being rushed to the Heritage hospital he succumbed to his injuries. The F.I.R. of the murder was lodged by the informant revisionist on the same day at about 10.50 p.m. at P.S. Chetganj, district Varanasi.

Investigation ensued pursuant to registration of aforesaid F.I.R. and accused Respondent Amit Singh was arrested in connection with the said murder. On 9.5.2006 Respondent accused filed an application before Chief Judicial Magistrate, Varanasi that he is a juvenile as his date of birth is 16.11.1990. Calculating from the said date the accused was merely sixteen years of age at the time of the murder. In accordance with the procedure prescribe u/s 7 of the Act Chief Judicial Magistrate, Varanasi transferred his case before the Board alongwith the relevant record on 10.5.2006.

Board conducted an inquiry into the juvenility of the accused Respondent and declared him to be a juvenile vide it''s order dated 19.6.2006. Board has found the age of the accused to be 15 years 4 months and 20 days. This order by the Board was, however, set aside by Additional Session''s Judge, Court No. 4, Varanasi vide his order dated 27.7.2006 passed in Criminal Appeal No. 80 of 2006, Om Prakash v. State of U.P. and another Criminal Appeal No. 80 of 2006, preferred by the informant revisionist. The case was remanded back to the Board for a fresh decision by affording reasonable opportunity to both the sides. It was at this stage that the informant revisionist filed an application that in view of insertion and addition of Section 7A in the Act, that the case be reverted back to C.J.M., Varanasi for conducting inquiry regarding the age of the accused. This application by the informant was rejected by the Board by passing the impugned order dated 13.10.2006. Challenge to the said order dated 13.10. 2006 passed by the Board in Criminal Appeal No. 113 of 2006 also proved futile as Session''s Judge, Varanasi also rejected the appeal filed by the revisionist vide his impugned order dated 12.12.2006. Hence this revision u/s 53 of the Act.

I have heard Sri D.S. Misra, learned Counsel for the revisionist in support of this revision and Sri R.S. Ram, learned Counsel for the accused Respondent and the learned A.G.A. in opposition.

Learned Counsel for the revisionist contended that the impugned orders passed by the Board as well as by Session''s Judge, Varanasi are illegal order as they have misinterpreted Section 7A of the Act. He contended that the only interpretation which can be given to Section 7A of the Act is that the Court before whom the accused has been brought can only conduct an inquiry and only it can decide the age and juvenility of the accused and it cannot refer the case before the Board as was provided u/s 7 of the Act. He further contended that the lower appellate court should have decide the age of the accused instead of remanding the matter back to the Board as he has got the said power u/s 6(2) of the Act. He relied upon judgments of the Apex Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, He also cited Naseem v. State 1995 ACR 33, for the proposition that the lower appellate court should not have remanded the case back and should have decided it himself.

Learned A.G.A. and the counsel for the Respondent accused submitted that the all the contentions raised by the revisionist is bereft of merit and deserves to be repelled. They contended that the construction put forward by the revisionist counsel is not warranted in law and is against the section itself. They submitted that the revision is meritless and deserves to be dismissed.

I have considered the contentions raised by the contesting sides. The controversy revolves round interpretation of Sections 7 and 7A of the Act and it''s scope. For a proper understanding Section 7 of the Act is referred to below:

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 that for the purposes of giving evidence), as a juvenile or child, he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding.

(2) The competent authority to which the proceeding his forwarded under Sub-section (1) shall hold the inquiry as if the juvenile or the child has originally been brought before it.

By Amending Act No. 33 of 2006, after Section 7, Legislature has inserted Section 7A in the Act. The reason for insertion is embedded in Section 7 itself and that is the expeditious determination of juvenility of an accused by the Court before whom he is brought. Section 7A of the Act was infused with life and came into effect from 22.8.2006 as on the said date it was published in Gazette of India, Extra., Part II , Section 1. Section 7A reads thus:

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 the 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.

From the perusal of the newly added Section 7A it is unambiguously clear that the said section has been enacted to expedite the determination of juvenility of an offender accused. Earlier Section 7 provided that for determination of age and juvenility the matter was to be referred to the Board. This procedure was time consuming and interregnum the juvenile had to remain in jail and therefore the Legislature thought it fit to confer power of determination of age and juvenility on all Courts. Now under the added section, once it is brought to the notice of any Court that an accused brought before it is or seems to be juvenile it has been conferred with the right to determine his age and juvenility. Thus the change which has been brought by the Legislature is the expansion of right of determination of juvenility and age to all Courts in India. The said right is now not confined only on Juvenile Justice Board as is required u/s 7 of the Act. Does this mean that Board has lost it''s power of determining the age of a juvenile or a child? The only answer is an emphatic No. Sections 7 and 7A of the Act are complementary and they do not overlap or interdict each other. The right of the Board is kept intact by the amending Act No. 33 of 2006. Section 7A does not eclipse Section 7 of the Act but it enlarges it''s scope and makes it more meaningful and practical. It diminishes the consumption of time and fosters expeditious disposal of claim of juvenility. Further it may be noted that insertion of Section 7A does not abridge or abrogate scope of Section 7 of the Act. Any Court still can refer the matter to the Board for determination of age of an accused u/s 7 of the Act. There is no bar to it. Section 7A nowhere provides that since the power to determine the age is conferred on every Court therefore Courts have become powerless to refer the matter before the Board for determination of juvenility or age of an accused. Such a construction will make constitution of Board nugatory. This was never the intention of the Legislature in inserting Section 7A in the Act and it kept, did not repeal Section 7 of the Act while inserting Section 7A.

Further Section 7A of the Act has to be read in conjunction with Section 49 of the Act. From a joint reading of both the statutory sections it is more than clear that any competent authority can determine the age of an accused and his juvenility. Principle of harmonious constructions permits such an exercise.

Reverting back to the facts of the present case it is clear that the matter was referred to before the Board by C.J.M., Varanasi who determined the age of the accused to be more than 15 years but less than 16 years. The said order was challenged in appeal by the revisionist which was allowed and the case was remanded back by the Additional Session''s Judge, Varanasi to the Board to decide the matter afresh after affording due opportunity to both the sides. It was only after the remand that the informant started raising the demand to transfer the case to C.J.M., Varanasi which was refused by the Board by passing the impugned order dated 13.10.2006 and the Session''s Judge also maintained the said order of refusal vide his impugned order dated 12.12.2006. There does not seem to be any illegality in the two orders passed by both the courts below as Board was legally competent to decide the said question. There is no dearth of power with it. Simply because Section 7A has been added in the Act that does not take away the power of the Board u/s 7 of the Act. So far the judgments cited by Sri D.S. Misra, learned Counsel for the revisionists are concerned those are irrelevant for deciding the controversy in question. Those decisions are entirely on different facts. There is no merit in this revision. It is dismissed.