Allahabad High Court
Jitendra Kumar vs State Of U.P. on 17 August, 2011
Bench: Amar Saran, Shyam Shankar Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 46
Criminal Misc. Second Bail Application No.140402of 2009
In
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 1269 of 2006
Petitioner :- Jitendra Kumar
Respondent :- State Of U.P.
Petitioner Counsel :- V.P. Srivastava,J.N.Chaturvedi,R.K. Srivastava
Respondent Counsel :- Govt. Advocate,Apul Misra
Hon'ble Amar Saran,J.
Hon'ble Shyam Shankar Tiwari,J.
1. We have heard learned counsel for the appellant and the learned A.G.A.
2. This is a second bail application moved on behalf of the appellant. The first bail application was rejected by an order dated 11.12.2007.
3. It is contended by learned counsel for the appellant that he is in jail since 2003. While in jail he had moved an application before the Judicial Magistrate/Principal Judge Juvenile Justice Board, Firozabad in Criminal Case No. 740 of 2008 for determination of his age by Chief Medical Officer, Firozabad and on direction by the Juvenile Justice Board for determination of his age the Chief Medical Officer, Firozabad issued a certificate showing his age as 20 years on 30.12.2010. The appellant has now added the plea of being a juvenile in the second bail application by way of supplementary affidavit and he should be given the benefit of a juvenile as at the time of alleged incident of the present case i.e. 23.2.2003 his age was about 13 years. It is further contended that the plea of juvenility can be raised at any stage in any court even after disposal of the case. In support of his contention reliance has been placed on observations made by the Apex Court in Dharmbir Vs. State (NCT of Delhi) and another 2010 (69) ACC 794. It is further contended that the appellant has been in jail for the last 8 years and on that count also he deserves to be released on bail.
4. Learned A.G.A. has opposed the second bail application of the appellant and submitted that the appellant was not a juvenile at the time of alleged incident. For determination of age any person as a juvenile specific procedure has been laid down in the Juvenile Justice (Care and Protection of Children) Act, 2000 and a detailed inquiry has to be made regarding the age of the person in question. In the present case no such inquiry has been conducted by the Juvenile Justice Board, Firozabad rather reliance has been placed only on a certificate alleged to have been issued by the Chief Medical Officer, Firozabad on 30.12.2010. It is further submitted that the appellant cannot get the benefit of a juvenile in this case as this plea by the appellant is only an afterthought and not bonafide. The plea of juvenile was not taken by the appellant during trial before the learned Sessions Judge at any stage. Even after his conviction in this case he filed first appeal before this Court and no such plea was taken in the prayer for bail. Even in the second bail application no such plea was taken. Thus the plea of being a juvneile is an after thought taken with malafide intention.
5. Considered the submissions made by learned counsel for the parties. Undoubtedly, the plea of juvenility can be taken by the appellant at any stage and before any court. The Hon'ble Apex Court in the aforesaid case Dharmbir (supra) has observed that such plea can be taken at any stage in any court. The facts and circumstances of the aforesaid case are quite different from the facts and circumstances of the present case. In that case on plea of juvenile a detailed inquiry was held by the Registrar and on the basis of the school certificates the age of the applicant was found to be below 17 years at the time of commission of offence in that case. In the present case record reveals that after about four years of his conviction in this case the appellant being an accused in another criminal case no.740 of 2008, under section 406 I.P.C., P.S. Linepar, district Firizabad moved an application before the Judicial Magistrate/Principal Judge Juvenile Justice Board, Firozabad for getting his age determined by Chief Medical Officer, Firozabad as he is an illiterate man and the court below accordingly directed the Chief Medical Officer, Firozabad to determine his age and the Chief Medical Officer by his report dated 30.12.2010 declared him to be about 20 years. On the basis of this certificate the learned Juvenile Justice Board passed a short order of few lines on 5.3.2011 holding the appellant as juvenile without holding any inquiry about his age, without taking any affidavit of his father or mother regarding the date month and year of his birth, without making any direction to the father of the appellant to produce birth certificate of the Municipal record or any kutumb register or any other documentary evidence regarding his age. Sole reliance has been placed on the certificate issued by the Chief Medical Officer. The order dated 5.3.2011 reveals that even the Chief Medical Officer or any other member of the Medical Board has not been examined to verify the authenticity of the above certificate. Thus the authenticity of above certificate on the basis on which the appellant has been declared a juvenile is not beyond doubt.
6. As regards the bonafide of the appellant in raising the plea of juvenility it appears that he never took this plea during trial before the court below, rather in his statement recorded under section 313 Cr.P.C. on 21.6.2004 before the trial court he has voluntary disclosed his age as 22 years. Thus according to his own disclosure his age comes to be about more than 20 years and six months at the time of the alleged incident i.e. 23.2.2003. Had he been actually juvenile, he would not have disclosed his age as 22 years in his statement under section 313 Cr.P.C.
7. In the case of Munney @ Rahat Jan Khan vs. State of U.P., A.I.R. 2006 SC 2902, the Apex court has observed that when the accused in his statement under section 313 Cr.P.C. has disclosed his age which comes to be more than the prescribed age under the Juvenile Justice (Care and Protection of Children) Act, 2000, at the time of incident his subsequent plea as juvenile cannot be considered in the absence of any reliable document and safely it can be taken that he was not a juvenile at the time of the incident. In the present case also the observation of the Apex Court in the above case is fully applicable as already discussed above. Thus the contention of the learned counsel for the appellant for getting the benefit of a juvenile has got no force.
8. As regards the next contention of learned counsel for the appellant that the appellant is in jail for the last about eight years, the Court while hearing the argument on the second bail application suggested learned counsel for the appellant to argue the case for final hearing on merit, he informed that he was not prepared for final hearing.
9. In view of the above facts and circumstances of the case, the second bail application moved by the appellant has got no force and is hereby refused.
Order Date :- 17.8.2011
RU
