Pankaj Tyagi vs State of U.P. and Another

Naheed Ara Moonis, J.—The instant 482 petition is arising out of judgment and order dated 10.10.2007 passed by the learned Sessions Judge, Muzaffar Nagar in Criminal Misc. Application No. 53 of 2007 (Ram Dayal v. State) whereby the application moved by the opposite party No. 2 u/s 6(2)/7A of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as an ''Act'' was allowed declaring the son of the opposite party No. 2 as juvenile. At the time of admission the another Bench by order dated 30.10.2007 while issuing notice to the opposite party No. 2 to file counter affidavit stayed the further proceedings in the aforesaid case. When the notices were served upon opposite party No. 2 the learned Counsel Sri Ram Jee Saxena put in appearance and filed a counter affidavit along with stay vacation application of which no rejoinder affidavit has been filed by the learned Counsel for the applicant despite time granted earlier.

I have heard Sri A.B.L. Gaur, learned Senior Advocate appearing on behalf of the applicant assisted by Sri Saurabh Gaur for the applicant, Sri Ram Jee Saxena, learned Counsel for the opposite party No. 2, the learned A.G.A. and perused the record.

A preliminary objection was raised by the learned Counsel appearing on behalf of the opposite party No. 2 with regard to the maintainability of the instant 482 petition. It is contended by him that the son of the opposite party No. 2 was implicated in a case u/s 376 Indian Penal Code, which was registered as case Crime No. 297 of 2007. At the alleged date of incident dated 1.3.2007 the accused was 14 years of age and claimed to be tried in accordance with the Juvenile Justice Act.

The application along with affidavit was moved on his behalf, which was rejected as not maintainable on the ground that no proceeding under the Juvenile Justice Act is pending. The said order was passed on 29.3.2007 by the learned Additional District Judge. No order has been passed on merit deciding the application moved u/s 6(2)/7A of the Act. The bail application on behalf of the son of opposite party No. 2 was pending before the Sessions Judge as Misc. Bail Application No. 890 of 2007. The said application was registered as criminal Misc. Case No. 56 of 2007 and the learned Sessions Judge had rejected that application on the question of maintainability, which is evident from the order itself, which is being reproduced;

Case called out. Present Sri Dushyant Singh, Advocate for the applicant. The present application has been moved by the applicant u/s 6(2) of Juvenile Justice (Care and Protection of Children) Act, 2000. The application u/s 2 of Section 6 of Juvenile Justice (Care and Protection of Children) Act, 2000 can be moved before the Sessions Judge only when the proceeding comes before the court in appeal, revision or otherwise. No appeal, revision or any other proceeding are pending before this Court regarding accused/applicant and as such the application cannot be entertained by Sessions Judge in view of Section 2 of the Act. The application is devoid of any merit and is liable to be rejected. The application is hereby rejected.

The application dated 12.3.2007 moved on behalf of the accused was filed before the court of Sessions Judge at the time of disposal of the bail application No. 890 of 2007 and the court below after hearing objection of the complainant/opposite party taking into account the scholar register, school leaving certificate and the medical report of the Chief Medical Officer allowed the application by order dated 10.10.2007 and arrived at the conclusion that the accused was minor at the time of incident and by his appearance also he appears to be minor less than 18 years of age. It is contended that Sections 52 and 53 of the Act provides remedy to file appeal or revision respectively. Section 52 specifically envisages the filing of an appeal to the court of sessions, which runs as follows;

Appeals. (1) Subject to the provisions of this section, any person aggrieved by an order made by a competent authority under this Act may, within thirty days from the date of such order, prefer an appeal to the Court of Sessions.

Provided that the Court of Session may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the Appellant was prevented by sufficient cause from filing the appeal in time.

No appeal shall lie from -

any order of acquittal made by the Board in respect of a juvenile alleged to have committed an offence; or

any order made by a Committee in respect of a finding that a person is not a neglected juvenile.

(3) No second appeal shall lie from any order of the Court of Session passed in appeal under this Section.

Section 53 provides remedy to file Revision, which provides that the High Court may at any time, either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any competent authority or Court of Session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit;

Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.

Section 54 deals with the procedure in enquiries, appeals and revision proceedings as provided under Sub-section (2) that the save as otherwise expressly provided by or under this Act, the procedure to be followed in hearing appeals or revision proceedings under this Act shall be as far as practicable in accordance with the provisions of the Code of Criminal Procedure, 1973 (2) of 1974.

On the basis of the aforesaid provisions it has been vehemently argued by the learned Counsel for the opposite party No. 2 that when specific provisions have been provided under the Statute for challenging the order impugned by the competent authority, the filing of the present 482 petition is an abuse of the process of law and bypassing the alternative remedy the applicant has filed the present 482 petition and had obtained ex parte order by fraud and mis-representation. The proceedings are held up and the bail application is still pending defeating the very purpose of the Act which protects and care the interest of juvenile in conflict with law.

Learned Counsel appearing on behalf of the applicant is not able to repel the contention of the learned Counsel appearing on behalf of the opposite party No. 2 and has contended that the court below has absolutely lost sight of the fact that earlier an application, which was numbered as Application No. 53 of 2007 moved by the opposite party No. 2 u/s 6(2) of the Act was rejected by the District & Sessions Judge, Muzaffar Nagar and that order was not challenged nor it was set aside by any court of law. Another application moved on 3.4.2007 on behalf of the accused claiming himself to be juvenile was not maintainable. The court below who had himself considered when the accused appeared before him that he appears to be major but subsequently on the application moved on behalf of the opposite party No. 2 holding him to be juvenile is absolutely illegal and perverse. It has further been stated that no opportunity was given to disapprove the claim of the opposite party No. 2. The impugned order is unsustainable in the eye of law hence the order dated 10.10.2007 is liable to be rejected.

It is settled law that if there is any specific provision it has to be adhered to and any deviation from it is impermissible, therefore, this petition lacks merits and deserves to be dismissed on this ground alone. The revisionist was a juvenile on the date of offence and the order passed by the learned Sessions Judge does not require any interference. Reliance has been placed by the learned Counsel on a decision of this Court in Om Prakash v. State of U.P. reported in (59) 2007 ACC 83 wherein the revision was preferred before this Court against the order of the Sessions Judge rejecting the appeal of the revisionist u/s 52 of the Act and has contended that the scope of Section 7A has been dealt with exhaustively by the learned judge and it has been observed that once it is brought to the notice before any court that an accused is brought before him and claims to be juvenile it is mandatory to determine the age of juvenility.

I have heard the learned Counsel at the bar at great length and found substance in the argument of the learned Counsel for the opposite party No. 2. Both Sections 7 and 7A of the Act are complementary and it enlarges the scope to make it more meaningful and practicable. Under the Juvenile Justice Act steps to be taken in respect of an accused who is a child within the meaning of the Act. Whenever a plea is raised by an accused that he was child at the time of incident then the court has to hold an enquiry itself for determination of age or he may cause an enquiry to be held and seek report. In view of Section 6(2) of the Act the court is competent to have conducted an enquiry in the instant case also and on the basis of the evidence produced before him the court below arrived at the conclusion that the son of opposite party No. 2 was minor at the time of the incident and as such he was declared juvenile. The said proceeding was initiated under Sections 6(2) and Section 7A of the Act. The procedure has been prescribed under the Act to determine the claim of juvenility when raised before any court. In this regard Section 7A of the Act worth to be reproduced herein.

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 there under, 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 settled principle that if the proceedings initiated under the Statutes which create a liability and also provides for a remedy, the remedy provided by the Statutes only must be availed of and not a 482 petition under the Criminal Procedure Code. Where a statutes provides that if the aggrieved person who has not first exhausted the remedy provided under the Statutes before approaching the High Court under Article 226 of the Constitution or in a 482 petition, the High Court would not normally entertain a petition straightway under 482 Code of Criminal Procedure when the statutes provides alternative remedy.

In view of the reasons above the present 482 petition is dismissed on the ground of alternative remedy and the interim order dated 30.1.2007 is hereby vacated.