Mukesh vs State Of U.P. & Another
2014 Latest Caselaw 1907 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 46
 

 
Case :- CRIMINAL REVISION No. - 1353 of 2013
 
Revisionist :- Mukesh
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- A.P. Tewari,Bharat Singh,R.S. Tripathi
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Kalimullah Khan,J.

This criminal revision under Section 397/401 Cr.P.C. has been preferred by accused Mukesh s/o Natthu r/o Village- Kanhua, P.S.- Gunnaur, District- Budaun (juvenile) through his father namely Natthu s/o Siyaraam, challenging the legality, correctness and propriety of order dated 20.4.2013 passed in Criminal Case No.-3/ 2012 (Mukesh vs. State of U.P.) whereby learned Additional Sessions Judge, Court No.-6, Budaun has rejected the application made by the revisionist to declare him juvenile.

Learned A.G.A. has received notice for the State of U.P. opposite party no.-1. Notice issued to Dharampal first informant opposite party no.-2 has been personally served but none for him has filed any counter affidavit. Today none has appeared for opposite party no.-2, complainant.

Heard learned counsel for the revisionist and learned A.G.A. and perused the materials placed before me including order impugned dated 20.4.2013.

It appears that S.T. No.- 1082 of 2008 State vs. Mukesh and others under Sections 498-A, 304-B, 201 I.P.C. and 3/4 Dowry Prohibition Act, P.S.- Rajpura, District- Budaun is pending in court of Additional Sessions Judge, Court No.-6, Budaun. Trial was in progress and at present it is fixed for examination of the accused under Section 313 Cr.P.C.

During the course of the trial, an application was made by accused Mukesh to declare him juvenile on the ground that his date of birth is 13.2.1990 as is apparent from his High School certificate.

In order to satisfy itself the learned trial court examined three court witnesses. Sohan Pal Singh (C.W.-1) has deposed before the court that he is Principal of Prathamik Vidhyalaya Noorpur, District- Budaun. The name of the applicant/ revisionist Mukesh was registered in his school in class Three. His date of birth was noted in the said register on the basis of information given by father of the accused. Yogendra Kumar (C.W.-2), the Principal of D.A.V. Inter College, Gunnaur has deposed that he had taken admission of accused applicant in class Six and has mentioned his date of birth as 13.2.1990 in the admission register. The aforesaid date of birth of accused was noted by him in his register on the basis of Transfer Certificate of class Five which was handed him over by the father of the accused applicant. Natthu (C.W.-3), father of applicant Mukesh deposed that the date of birth of Mukesh is 13.2.1990.

On the basis of the aforesaid evidence learned trial court has observed that by physical appearance the applicant does not appear to be a juvenile on the date of incident. Of course, his date of birth 13.2.1990 is mentioned in the High School Marksheet. According to aforesaid date of birth he was juvenile on 28.12.2007, the date of incident as on that date he was 17 years 10 months 15 days old i.e. below 18 years. But ultimately he did not hold him juvenile as by his physical appearance he did not appear below 18 years of age on the date of incident. No medical certificate was filed by accused applicant and there was no evidence as to on what basis his date of birth was written as 13.2.1990 in class three when he, for the first time, took admission in Primary School. Apart from it he opined that by look in the year 2013, the applicant appears to have attained the age of majority prior to 8-10 years.

Learned counsel for the applicant has submitted that as per rule 12 (3) (a) - (i) of Juvenile Justice (Care and Protection of Children) Rules, 2007 the matriculation certificate would be sole deciding factor in determining the question of juvenility. Admittedly, High School certificate has been filed showing the date of birth of the applicant Mukesh as 13.2.1990 and learned trial court has observed that in view of the aforesaid date of birth of the applicant he was juvenile on the date of incident but did not render benefit of juvenility to him. Therefore, the order is incorrect, illegal and improper.

Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 reads as under:-

"7-A. 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 enquiry, 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."

The procedure provided for determination of age of juvenile is embedded in rule 12 of The Juvenile Justice (Care and Protection of Children) Rules, 2007 which reads as under:-

"12. Procedure to be followed in determination of Age. - (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or, as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(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;......................"

The aforesaid provisions make it clear that if at any stage of the trial, a question of juvenility is raised then the trial court is bound under the law to determine the question of juvenility in accordance with the procedure embedded in rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007.

Apart from it, providing opportunity of hearing to the complainant of the case is a cardinal principle of natural justice because he is the aggrieved person in case applicant is held juvenile.

Audi alteram partem (or audiatur et altera pars) is a Latin phrase that means "hear the other side too", or "hear the alternative party too". It is most often used to refer to the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.

"Audi alteram partem" is considered a principle of fundamental justice or equity in most legal systems. The principle includes the rights of a party or his lawyers to confront the witnesses against him, to have a fair opportunity to challenge the evidence presented by the other party, to summon one's own witnesses and to present evidence, and to have counsel, if necessary at public expense, in order to make one's case properly.

Perusal of the impugned order shows that no opportunity whatsoever was given to the complainant Dharampal father of the bride deceased of this case before passing the aforesaid order dated 20.4.2013. If the matriculation certificate shows the date of birth of the applicant as 13.2.1990, then opportunity to complainant must be given to rebut the aforesaid fact and meet out the contention of the applicant. By not doing so the procedure made for determination of juvenility of the applicant has been ignored. Opportunity of hearing has been given go by which is not proper and correct. Hence, the order impugned is bad in law and deserves to be set aside. Therefore, the impugned order dated 20.4.2013 is here by set aside.

The matter is remanded back to the learned trial court to decide the question of juvenility afresh in accordance with the provision and procedure established by law after serving notice to the first informant.

Revisionist is directed to appear before the court on 23rd July, 2014.

Criminal revision stands disposed of accordingly.

Order Date :- 21.5.2014/ Atmesh