Raju Ahirwar vs State Of U.P. And Anr.
2011 Latest Caselaw 3497 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.50
 

 

 

 
Criminal Revision No.142 of 2011
 

 

 

 
Raju Ahirwar		.........  Revisionist
 

 
Versus
 

 
State of U.P. & another		........  Opposite Parties
 

 

 

 
Hon'ble S.C. Agarwal, J.

Rejoinder affidavit filed today on behalf of the revisionist is taken on record.

Heard Sri V.S. Parmar, learned counsel for the revisionist, learned A.G.A. for the State and perused the impugned order.

No notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he feels so aggrieved.

This revision is directed against the order dated 7.12.2010 passed by Sessions Judge, Hamirpur in Criminal Misc. Case No. 3/11/2010, Raju Ahirwar Vs. State of U.P. arising out of crime no.320 of 2010 under sections 452, 376, 511 IPC, P.S. Majhgawan, District Hamirpur whereby the application 3-Ka moved by accused Raju Ahirwar (revisionist) for declaring himself to be a juvenile, has been rejected.

Revisionist is the sole accused in the aforesaid case. An application under section 6 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'Act') was filed by the revisionist before learned Sessions Judge to declare him to be a juvenile in conflict with law on the ground that he passed Primary School Examination, 2004 (Class V) from Primary School, Majhgawan, Hamirpur and the date of birth of the revisionist in the school records as well as in the parivar register is 3rd April, 1993. The incident took place in June 2010 and, therefore, on the date of incident, the revisionist was a juvenile.

Learned Sessions Judge rejected the aforesaid applications on the ground that the marks sheet, progress report, school leaving certificate and parivar register show the date of birth of the accused - revisionist to be 3rd April, 1993, but no witness was produced to prove these documents and all these documents are photo stat copies, which are not admissible in evidence. Moreover, the report of C.M.O., Hamirpur dated 8.10.2010 reveals that the revisionist appears to be 19 years of age. Consequently the application was rejected.

Learned counsel for the revisionist submitted that learned Sessions Judge committed illegality in rejecting the application doubting the documents filed before it. It was further submitted that when an application was moved by the accused- revisionist for declaring him to be a juvenile, learned Sessions Judge was bound to hold an inquiry under section 7A of the Act and should have given an opportunity to the revisionist to lead evidence in support of his application.

Learned A.G.A. has no objection if the matter is remanded to the trial court for a fresh decision in the light of section 7A of the Act and Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 'Rules 2007').

Section 7 A of the Act provides as under :

"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 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.

(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 order, and the sentence if any, passed by a court shall be deemed to have no effect."

From the impugned order, it is apparent that no opportunity of hearing and to lead evidence was provided by learned Sessions Judge either to the accused -revisionist or to the prosecution or complainant. As per the provisions of section 7A of the Act, when an application claiming juvenilty is moved before the Court, the Court is bound to hold an inquiry and to take such evidence, as may be necessary (but not an affidavit) so as to determine the age of such person, and to record a finding whether the person is a juvenile or a child or not. Learned trial court did not hold any inquiry. The application moved by the revisionist was dismissed simply on the ground that these documents were photo stat copies and were not admissible in evidence and no witness was produced to prove these documents.

If learned trial judge was not satisfied with the documents filed by the revisionist, he should have directed the revisionist to prove them in Court and should also have called the relevant authorities i.e. Principal of the School etc. to obtain evidence regarding date of birth of the revisionist. Under section 7A of the Act, trial court has to act as an inquiry officer and should have actively participated in the inquiry. Even if the parties are unable to lead evidence on any point, the trial court is entitled to summon any person or any document, which may be of relevance and which may be helpful in deciding the point regarding date of birth of the accused. A Court holding an inquiry under section 7A of the Act is not a referee between the two litigating parties i.e. prosecution and the defence, but the duty of the Court acting under section 7A of the Act is to find out the truth and to reach a proper conclusion regarding the age of the accused.

Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 'Rules 2007') provides as under :

"12 (3). Procedure to be followed in determination of Age.-- (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (I), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his / her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii) (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

It was the duty of the learned Sessions Judge to hold a proper inquiry and to decide the question of juvenility of the accused in accordance with section 7A of the Act and Rule 12 (3) of the Rules 2007. Such a course has not been adopted by learned Sessions Judge and the application for declaring the accused as juvenile was rejected without holding any inquiry. Thus, the impugned order cannot be sustained and is liable to be set-aside.

Revision is allowed.

Impugned order dated 7.12.2010 is set-aside.

Learned Sessions Judge is directed to hold a proper inquiry in accordance with section 7A of the Act and Rule 12 (3) of the Rules 2007. He shall also provide opportunity to the accused, the State as well as the complainant to lead oral and documentary evidence in support of their respective claims and may also refer to the accused to a duly constituted Medical Board for obtaining its opinion regarding the age of the accused and thereafter the trial court shall record a finding whether the accused is a juvenile or a child or not, stating his age as nearly as may be, on the date of the offence.

Dtd./- 4.8.2011.

ss - 142 / 2011.