HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Criminal Revision No.300 of 2011 Irfan alias Saddam ..............Revisionist Versus State of U.P. and another ......Opposite parties Hon'ble S.S. Chauhan, J.
Heard learned counsel for the revisionist and learned AGA.
Through this revision, the revisionist has challenged the order passed by the learned Sessions Judge dated 29.6.2011, inter alia, on the ground that the learned Sessions Judge has misdirected himself in dismissing the appeal of the revisionist on technical ground that revision is maintainable.
The facts in brief are that in reference to an incident which took place on 25.3.2010 at about 7:30 A.M., an FIR was lodged on the same day at 8:15 A.M. by complainant Mohd. Riyaz Khan against Naim Ullah, Imran alias Immi and the present accused revisionist. The revisionist was produced before the Magistrate, Juvenile Justice Board, Sultanpur as he pleaded minority in respect of himself. The evidence was adduced before the learned Magistrate and after conclusion of the evidence, learned Magistrate proceeded to hold that the revisionist was about 22 years of age at the time of occurrence. Aggrieved with the said order, revisionist preferred a criminal appeal in the court of learned Sessions Judge under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short "the Act"). The appeal was filed before the learned Sessions Judge on 3.6.2011 and was heard on 29.6.2011. The parties appeared before the learned Sessions Judge and put forward their claim. Learned Sessions Judge after appreciating the argument of the parties, dismissed the appeal of the revisionist on technical ground saying that the appeal was not maintainable as against the order passed by the Magistrate, it was only revision, which was maintainable in view of the law propounded by the Apex Court in the case of Jabar Singh vs. Dinesh Chandra, 2010 (1) L.Cr.R. (SC) page 353.
Submission of learned counsel for the revisionist is that Section 52 of the Act clearly contemplates filing of an appeal against any order of the Magistrate and Section 53 of the Act contemplates entertainment of revision by the High Court. Thus, he submits that in view of the clear provision contained in the Act, learned Sessions Judge has misdirected himself in referring a finding that the revision was maintainable. It is also submitted that Jabar Singh (supra) also does not lay down the aforesaid proposition but in fact in the said case a revision was filed against the trial court's order before the High Court and the accused was never presented before the competent authority i.e. Juvenile Justice Board and the aforesaid fact has been dealt with in the said case. The Apex Court observed in reference to the proceedings initiated for determination of juvenality before the trial court that Section 49 of the Act thus contains no provision prohibiting the court to determine the claim of juvenality if raised and in reference to Section 49 of the Act, it was held by the Apex Court that a plain reading of Section 52 of the Act shows that no statutory appeal is available against any finding of the trial court that a person was not juvenile at the time of commission of the offence. Learned counsel submits that the said observation has been made in reference to the trial court's order but not in reference to the proceedings before the Juvenile Justice Board. Learned Sessions Judge has totally misdirected himself in relying upon the said decision and dismissing the appeal of the revisionist.
Learned AGA has also agreed that if an accused is presented before the competent authority under Section 49 (1) of the Act, then it is the competent authority, who will determine the juvenality of that accused and against that order an appeal under Section 52 of the Act would be maintainable. Learned AGA has also drawn the attention of the Court towards Sections 52 and 53 of the Act and the proposition of law laid down in the case of Jabar Singh (supra) and has submitted that when there is a specific provision under the statute for filing an appeal, the said provision cannot be by-passed and has to be adhered to.
I have heard learned counsel for the parties and perused the record.
The revisionist moved an application before the Juvenile Justice Board claiming that he was minor. The said application of the revisionist was rejected and thereafter he filed an appeal. During pendency of the appeal, the matter was heard and relying upon Jabar Singh (supra), it was held by the learned Sessions Judge that appeal was not maintainable. Learned Sessions Judge totally misdirected himself and rather misunderstood the said case law while dealing with the issue in question. Section 52 of the Act provides as under:-
"52. 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 Session:
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.
(2) No appeal shall lie from--
(a) any order of acquittal made by the Board in respect of a juvenile alleged to have committed an offence; or (b) 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." Revision under Section 53 of the Act can be filed before the High Court, which reads as under:-
"53. Revision.--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."
From reading both the sections, it is crystal clear that when an application is moved before the competent authority under Section 49 of the Act for determination of juvenality, then appeal would be maintainable under Section 52 of the Act before the Sessions Judge. In Jabar Singh (supra), the application was moved before the trial court and not before the competent authority and in that reference in para-29 of the said report, it has been said by the Apex Court that Section 52 of the Act shows that no statutory appeal is available against any finding of the trial court. While mentioning about the word 'finding of the court', the Apex Court virtually meant the finding of the trial court and in reference to trial court's order that observation was made that appeal was not maintainable and it was only that revision was maintainable as appeal was maintainable against the order of the competent authority. The finding recorded by the learned Sessions judge, therefore, is beside the point and beside the case law which has been mentioned and has been relied upon by him. There is much difference in the facts of both the cases and the appeal is certainly maintainable in view of the provisions contained in Section 52 of the Act when an order is passed by the competent authority.
In this view of the matter, the revision is allowed and the order dated 29.6.2011 passed by the Sessions Judge, Sultanpur is hereby set aside. The matter is remitted to the Sessions Judge, Sultanpur to decide the appeal of the revisionist in accordance with law on merit.
August 3rd , 2011 RBS/-