Sher Singh @ Sheru vs State Of U.P.
2015 Latest Caselaw 1917 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 36
 

 
Case :- CRIMINAL APPEAL No. - 1883 of 2013
 

 
Appellant :- Sher Singh @ Sheru
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Dharmendra Singhal,Babit Kumar,J.S.Audichya,Rajul Bhargava
 
Counsel for Respondent :-Govt. Advocate
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

Heard Sri Dharmendra Singhal, learned counsel for the appellant and learned A.G.A.

The kidnapping for ransom of a 3 year old child and his recovery in a police raid led to a trial by the Sessions Court in which the appellant has been convicted by the judgment dated 15.4.2013.

In this appeal, an issue of juvenility has been raised in the background that the incident in which the appellant is involved is of 15th/16th May 2003. The appellant claims that his date of birth recorded in the High School Examination (Matriculation) record is 15th October 1986 and as such on the date of the incident, he had not attained the age of 18 years, consequently, he was entitled to the benefit of being a juvenile as contemplated under the Juvenile Justice Act, 2000 read with the 2007 Rules framed thereunder.

What appears from the record is that the appellant had moved an application for declaring him to be juvenile before the concerned court in Session Trial No. 188 of 2004. The prosecution had moved an application for conducting a joint trial of this case along with the Session Trial No. 56-A of 2004 and 188-A of 2004.

The application moved for declaring the appellant a juvenile in Session Trial No. 188 of 2004 was sent to the Juvenile Justice Board and in that file, vide order dated 5.9.2005, the claim of the appellant to declare him a juvenile in Case Crime No. 147 of 2004 and Case Crime No. 148 of 2004, the Juvenile Justice Board rejected the plea of the appellant after getting a medical report from the Chief Medical Officer, Mathura dated 4.7.2005. The order dated 5.9.2005 categorically records that since no other evidence was adduced the parties agreed for the disposal of the application and it was held that the applicant was aged about 19 years on the date of the incident in the aforesaid case crime numbers.

After almost four years thereafter, a prayer appears to have been made in Session Trial No. 188-A of 2004 connected with the same incident praying for declaration of the appellant in the said Session Trial as a juvenile. The matter was examined by the Juvenile Justice Board and on 19.11.2009, the prayer for declaring him a juvenile was rejected by the Juvenile Justice Board against which the appellant filed an appeal on 19.9.2011 in terms of Section 52 of the 2000 Act after a period of almost two years. It appears that at the stage of appeal the matriculation certificate was adduced and pressed for the first time as it conformed to the 2007 Rules. This may have been done on legal advice as the earlier order dated 5.9.2005 had been passed prior to the 2007 Rules. In these proceedings, a reference was made of the application moved for declaring the appellant to be juvenile bearing no. 35-Kha. This was the application, which was moved for sending the file to the Juvenile Justice Board, but prior to that, after the order dated 5.9.2005 referred to hereinabove, a request had been made to send the file to the learned Sessions Court.

Thus two sets of orders came into existence in relation to the claim of juvenility of the appellant, one dated 5.9.2005 and the other dated 19.11.2009.

The appeal, which was against the order dated 19.11.2009 was dismissed on 29.9.2011 and the appellate court recorded all the above noted facts in the said order. What appears from the order dated 29.9.2011 is that this contention of the appellant about declaring him to be a juvenile was dismissed on the observations that were noted including the observation that no appeal had been filed against the order dated 5.9.2005 passed earlier in relation to S.T. No. 188 of 2004.

Faced with this at this stage, the appellant filed an Appeal No. 153 of 2012 against the order dated 5.9.2005, which was dismissed on 4.2.2013 firstly, on the ground that the appeal had been presented after almost seven years and there was no reason to condone the delay and secondly, the appellant had full knowledge of the order dated 5.9.2005, that was subject matter of consideration by the Juvenile Justice Board in the subsequent order dated 19.11.2009 and dismissal of the appeal on 29.9.2011.

These facts have been mentioned clearly in the appellate order dated 4.2.2013.

The appellant, thereafter probably realising the legal obstruction on account of the order dated 5.9.2005 having become final, preferred Writ Petition No. 3438 of 2013 which was dismissed as withdrawn treating it to be infructuous vide order dated 13.10.2014 but with an observation that the right of the petitioner to raise the issue of juvenility shall not be affected in the present appeal.

The judgment in the writ petition dated 13th October 2014 is extracted hereunder :

"Learned counsel for the petitioner submitted that during the course of trial, the petitioner moved an application under Section 7 (a) of the Juvenile Justice Act, 2000 to declare him as juvenile. However, that application was rejected by the court concerned and accordingly, the petitioner was prosecuted under the general criminal law and was convicted by the trial court. Against the said judgment and order of conviction, the petitioner has already preferred criminal appeal in this Court.

Thus, this writ petition has now become infructuous. Learned counsel for the petitioner prays to withdraw this writ petition.

Accordingly, this writ petition is dismissed as withdrawn.

However, it may not affect the right of the petitioner to raise the issue of juvenility in the appeal pending in this Court. "

These peculiar facts, about the subsequent claim of juvenility emanating from the order dated 19.11.2009 rejecting the claim on the ground of excessive delay, and earlier rejection dated 5.9.2005 that was challenged subsequently in appeal, after rejection of the appeal against the order dated 19.11.2009 on 29.9.2011, gave rise to the writ petition that was dismissed on 13.10.2014 with observations noted therein. It may also be mentioned that the writ petition records were perused by us and we find that only the orders dated 5.9.2005 and 4.2.2013 have been prayed to be quashed. There is no challenge raised to the orders dated 19.11.2009 and 29.9.2011 nor any prayer to quash them. No other proceedings questioning these orders are reported to have been instituted.

A division bench that heard this appeal earlier passed the following order on 28.5.2015:-

"Hon'ble Bala Krishna Narayana,J.

Hon'ble Mohd. Tahir,J.

Heard learned counsel for the applicant-appellant, learned A.G.A for the State and perused the record.

Learned counsel for the applicant-appellant submitted that the applicant-appellant was juvenile at the time of occurrence in question, so this matter be referred to the Juvenile Justice Board, Mathura for ascertaining the age of the applicant-appellant at the time of occurrence in question.

In view of the submission of the applicant-appellant's counsel, this matter is referred to the Juvenile Justice Board, Mathura which shall after giving opportunity to the complainant / first informant and the State ascertain the age of the applicant-appellant at the time of the incident in question.

Let a copy of the F.I.R. and charge sheet submitted by the police along with the copy of the order be transmitted to the Juvenile Justice Board, Mathura through District Judge, Mathura for holding an inquiry for the aforesaid purpose. This Court expects that the inquiry shall be completed within a period of one month from the date of receipt of the copy of this order, where after the report shall be submitted by the Board. As soon as the report is received, the Registry shall list this appeal on 20.07.2015 before the appropriate Bench for passing appropriate order.

Order Date :- 28.5.2015"

Subsequently this bench passed the following order on 20.7.2015:-

"Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

Heard Sri Dharmendra Singhal, learned counsel for the appellant.

A plea of juvenility was taken before the Juvenile Justice Board, which was rejected during the course of the trial itself. The appellant filed an appeal against the same which is stated to have been rejected on the ground of limitation. Against the said appellate order, a writ petition no. 3438 of 2013 was filed, but by the time the writ petition came to be decided, the trial court had already convicted the appellant.

The writ petition was, therefore, allowed to be withdrawn with liberty to take this plea of juvenility in this appeal itself.

Consequently, a supplementary affidavit dated 16.10.2014 alongwith an application was filed on which this court passed an order on 28.5.2015 referring the matter to the Juvenile Justice Board once again. What we find is that the issue of juvenility had become final but the writ petition was dismissed as withdrawn with the presumption that the issue has become infructuous. However, while permitting the withdrawal, the court observed that it shall not affect the right of the petitioner to raise issue of juvenility in this appeal. We find from the judgment of the trial court taking notice of this plea of juvenlity in paragraph-4 of the judgment and then after having found that the appellant was not a juvenile, it assumed jurisdiction of trial and has now finally convicted the appellant. In such a situation, Sri Singhal may explain as to how without setting aside or overcoming the order of juvenility that has already been passed, this Court can now proceed once the said issue has been noticed by the trial court while assuming jurisdiction to try the appellant and then proceeded to convict to him. Even otherwise the report of the Juvenile Justice Board has not yet arrived.

Let the matter come up with a fresh report from the court below on Monday i.e. 27.7.2015.

Order Date :- 20.7.2015"

The report and the order dated 17.7.2015 as desired has been furnished in a sealed envelop sent by the Juvenile Justice Board, Mathura. The same is extracted hereinunder:

"i=koyh vkt is'k gqbZA iz'uxr i=koyh ekuuh; mPp U;k;ky; bykgkckn] }kjk fdz0 vihy la[;k [email protected] 'ksjflag mQZ 'ks: cuke m0iz0 jkT; esa bl funsZ'k ds lkFk fd'kksj U;k; ifj"kn eFkqjk dks izkIr gqbZ Fkh fd fd'kksu U;k; ifj"kn~ eFkqjk ekuuh; mPp U;k;ky; ds vkns'k dh izfr izkIr gksus ds ,d ekg ds vUnj izkFkhZ 'ksjflg mQZ 'ks: dh iz'uxr ?kVuk ds le; vk;q fu/kkZj.k tkWp djsaA mDr vkns'k ds vuqikyu esa ifj"kn }kjk 'ksjfalag mQZ 'ks: rFkk oknh eqdnek dks uksfVl fuxZr fd;s x;sA mHk;i{k U;k;ky; ds le{k mifLFkr vk;sA mudh cgl lquh x;hA

oknh eqdnek }kjk fd'kksj U;k; ifj"kn eFkqjk dks ;g voxr djk;k x;k fd iz'uxr fd'kksj ds lEcU/k esa iwoZ esa gh fd'kksj U;k; ifj"kn eFkqjk }kjk vk;q fu/kkZj.k tkWp dh x;h gS ftlesa vius vkns'k fnukad 05&09&2005 dks 'ksjflag mQZ 'ks: }kjk dksbZ Hkh izi= ugh izLrqr fd;k x;k gSA rc rRdkyhu fd'kksj U;k; ifj"kn eFkqjk 'kSf{kd vfHkys[kksa ds vHkko esa eSMhdy djk;k x;kA mDr eSMhdy vk[;k esa mldh vk;q 21 o"kZ ik;h x;hA ftlds vk/kkj ij rRdkhyu fd'kksj U;k; ifj"kn eFkqjk ds iz/kku eftLVzsV ,oa lnL; }kjk mls ?kVuk dh frFFk ij 19 o"kZ dk ikrs gq;s mls o;Ld ?kksf"kr fd;k x;kA oknh eqdnek }kjk mDr vkns'k dh Nk;kizfr i=koyh ij nkf[ky dh x;h gS ,oa blds vfrfjDr muds }kjk fd'kksj U;k; ifj"kn eFkqjk ds vkns'k fnukWd 05&09&2005 ds fo:) izLrqar vihy la[; [email protected] ds vkns'k dh lR;kfir izfr Hkh izLrqr dh x;h gSA ftlds voyksdu ls fofnr gksrk gS fd fnukWd 4&2&2013 dks vihyh; U;k;ky; }kjk mDr vihy fujLr dj nh x;hA i=koyh ij oknh }kjk ,d vU; vkns'k toSukby izdh.kZ okn la[;k [email protected] fnukafdr 29&09&2011 Hkh izLrqr fd;k gS ftlds voyksdu ls Kkr gksrk gS fd izkFkhZ 'ksjflag mQZ 'ks: dk mDr izkFkZuk i= Jheku vij ftyk ,oa l= U;k;k/kh'k U;k;ky; la[;k&1 eFkqjk }kjk fnukWd 29&9&2011 dks fujLr fd;k tk pqdk gSA

mDr leLr izi=ksa ds voyksdu ls Li"V gS fd fd'kksj ds lEcU/k esa iwoZ esa mldks Ik;kZIr ekSdk fn;s tkus ds mijkUr fd'kksj U;k; ifj"kn eFkqjk }kjk fnukad 05&09&2005 dks ?kVuk dh frfFk dks mls o;Ld ikrs gq;s mls fd'kksj ugha ekuk x;kA

ijUrq pwWfd ekuuh; mPp U;k;ky; }kjk fd'kksj U;k; ifj"kn eFkqjk dks ?kVuk ds le; mldh vk;q fu/kkZj.k tkWp dk vkns'k fn;k x;k gSA vr% ;g ifj"kn ekuuh; mPp U;k;ky; ds vkns'k ls ck/; gSA ekuuh; mPp U;k;ky; ds mDr vkns'k ds ifjizs{; esa fd'kksj U;k; ifj"kn eFkqjk }kjk izkFkhZ 'ksjfalg ds firk jkeohj flag dks ijhf{kr djk;k x;kA ftUgksaus viuh eq[;&ijh{kk esa ;g dFku fd;k gS fd 'ksjflag mQZ 'ks: dh tUefrfFk 15&10&1986 gSA lu 2003 esa c`t vkn'kZ b.Vj dkyst ekaV ls gkbZLdwy dh ijh{kk izkbZosV nh FkhA mlds iwoZ 'ksjflag mQZ 'ks: d{kk 6 ls 10 rd jk"Vzh; b.Vj dkyst jk;k esa i<+k Fkk ijUrq 10 oha esa ogka Qsy gks x;k FkkA vU; fo|ky;ksa esa Hkh mldh tUefrfFk 15&10&1986 gh gSA fo}ku lgk;d vfHk;kstu vf/kdkjh }kjk dh x;h ftjg esa mlus ;g dgk gS fd mls vius gj cPps dh tUefrfFk D;k gS ugh crk ldrkA blds vfrfjDr bl lk{kh }kjk vU; dksbZ egRoiw.kZ dFku ugha fd;k gSA fd'kksj U;k; ifj"kn eFkqjk }kjk c`t vkn'kZ b.Vj dkyst ekaV ds iz/kkukpk;Z dks 'ksjflg ls lEcfU/kr 'kSf{kd vfHkys[kksa ds lkFk vkgwr fd;k x;kA mUgksaus viuh eq[;&ijh{kk esa crk;k gS fd 'ksjfalg us o"kZ 2005 esa gkbZLdwy dh ijh{kk mRrh.k dh gS ftlesa mldh tUefrfFk 15&10&1986 vafdr gSA muds }kjk ek/;fed f'k{kk ifj"kn }kjk tkjh dzkWl fyLV dh Nk;k izfr Loizekf.kr djds nkf[ky dh x;h gS] ftl ij izn'kZ [k&1 vafdr fd;k x;kA ftlds voyksdu ls fofnr gksrk gS fd 'ksjfalg iq= jkeohj dh tUefrfFk 15&10&1986 vafdr gSA blds vfrfjDr bl lk{kh }kjk izkFkhZ 'ksjfalg ds gkbZLdwy vadi= ,oa izek.k i= dks ns[kdj ;g crk;k x;k fd ;g mlds fo|ky; dh gSA ftldh izfr ij dze'k% izn'kZ [k&2 o izn'kZ [k&3 Mkys x;sA fo}ku lgk;d vfHk;kstu vf/kdkjh }kjk dh x;h ftjg esa lk{kh us crk;k gS fd Nk= dh tUefrfFk dsls vafdr dh x;h gS bldk muds ikl dksbZ lk{; ugh gSA mlus d{kk 9 rd dh f'k{kk dgka ls izkIr dhA bldk Hkh dksbZ izek.k muds ikl ugha gSA oknh eqdnek }kjk vU; dksbZ lk{; izLrqr ugha fd;k x;kA

;gkWa fd'kksj U;k; fu;ekoyh 2007 dk fu;e 12 ¼3½ dk voyksdu mfpr izrhr gksrk gS ftlesa ;g /kkfjr gS fd fdlh fd'kksj dh vk;q fu/kkZj.k ds le; ojh;rkdze esa lk{; bl izdkj fy;s tkosaxsA

1& eSfVzdqys'ku izek.k i=] ;fn ;g u gks rks]

2& izFke izos'k Ldwy dk tUe izek.k i=] ;fn ;g Hkh u gks rks]

3& uxj ikfydk ;k iapk;r }kjk tkjh tUe izek.k i=A

mDr rhuksa dh vuqifLFkfr esa pfdRlh; }kjk fu/kkZfjr vk;qA

mDr fu;e ds izko/kkuksa ds vuqlkj izkFkhZ }kjk eSfVzdqys'ku izek.k i=] nkf[ky fd;s x;s gS] ftudh lEiqf"V mDr fo|ky; ds iz/kkukpk;Z dh lk{; ls Hkh gks jgh gS rFkk i=koyh ij vfHk;kstu ;k oknh eqdnek dh vksj ls ,slk dksbZ lk{; nkf[ky ugha fd;k x;k gS ftlls bl 'kSf{kd vfHkys[kksa dh lR;rk lafnX/k gksrh gksA

bl izdkj mijksDr leLr foospuk ,oa i=koyh ij izLrqr lk{; ds ,d:is.k ifj'khyu ds mijkUr fd'kksj U;k; ifj"kn eFkqjk dk loZlEer er gS fd iz'uxr ?kVuk fnukWd 16&5&2003 dh gS tcfd 'kSf{kd vfHkys[kksa ds vuqlkj izkFkhZ 'ksjfalg mQZ 'ksjk dh tUefrfFk 15&10&1986 gSA bl izdkj ?kVuk dh frfFk ij mldh vk;q 16 o"kZ 7 ekg 1 fnu vk jgh gSA vr% ?kVuk dh frfFk ij 18 o"kZ ls de vk;q dk ik;s tkus ij og fof/k dk mYya?ku djus okyk fd'kksj ?kksf"kr fd;s tkus ;ksX; gSA

vkns'k

rnuqlkj 'ksjflag mQZ 'ksjk iq= jkeohj flag fuoklh xyh eosf'k;ku Fkkuk jk;k ftyk eFkqjk dks ?kVuk dh frfFk 16&05&2003 ij 18 o"kZ ls de vk;q dk ik;s tkus ds dkj.k fof/k dk mYya?ku djus okyk fd'kksj ?kksf"kr fd;k tkrk gSA

vkns'k fu;ekuqlkj lhy cUn fyQkQs esa ekuuh; tuin U;k;k/kh'k egksxn; eFkqjk ds ek/;e ls ekuuh; bykgkckn mPp U;k;ky; vfoyEc izsf"kr gksA^^

The appellant has been held to be aged less than 18 years on the date of the incident.

The question, which has arisen before us is the procedure to be adopted to proceed in this matter keeping in view the previous orders passed by the Juvenile Justice Board that came to be challenged by the appellant and the other orders referred to hereinabove.

A perusal of the Juvenile Justice (Care and Protection of Children Act, 2000), read with the 2007 Rules clearly spells out that after a Court of Sessions has decided an appeal in relation to declaration of juvenility, a revision shall lie under Section 53 of the Act before the High Court. The appellant instead of filing a revision petition, filed the aforesaid writ petition and the same was dismissed as infructuous upon which the learned counsel made a prayer to withdraw the petition. The court however made an observation that it shall not affect the right of the petitioner to raise the issue of juvenility in the present appeal in as much as by the time the petition was taken up for disposal, the trial had come to an end and the appellant had been convicted and the present Criminal Appeal had been filed.

It is to be noted that both the decisions of the Juvenile Justice Board as well as the orders in the two appeals, had been delivered before the conviction of the appellant by the trial court on 15.4.2013 and only the orders dated 5.9.2005 and 4.2.2013 had been challenged in the writ petition referred to hereinabove. The other set of orders dated 19.11.2009 and 29.9.2011 do not appear to have been challenged.

From a perusal of the aforesaid facts, what we find is that the observation made by the Writ Court is that the right of the petitioner to raise the issue of juvenility may not be affected in the present appeal which according to Sri Singhal should be construed to treat the issue of juvenility alive and not final.

The question is if the issue of juvenility had attained finality under a separate set of proceedings and had reached this Court in a writ petition, that was dismissed as infructuous and withdrawn without any challenge to the second set of proceedings, will it be open to the appellant to raise the same issue again in appeal.

Sri Singhal submits that if the writ petition was otherwise not maintainable and a revision lay under Section 53 of the 2000 Act then in that event, the appellant could have been permitted to convert the said writ petition into a revision but his right to challenge the orders of the learned Sessions Court and the Juvenile Justice Board could not have been shut out or taken away and it is for this reason i.e. his right to raise the issue of juvenility was saved under the order dated 13.10.2014 in this appeal. He submits even otherwise no finality can be attached as the appellant had approached this Court and therefore this Court rightly proceeded to order a fresh enquiry vide order dated 28.5.2015 and the consequential order of the Juvenile Justice Board dated 17.7.2015 should be accepted and the appellant should be extended its benefit in view of the various pronouncements of the Apex Court.

The aforesaid submission has been countered by the learned A.G.A. to contend that if the issue of juvenility had been raised and a final verdict had been delivered as noted above, then in that event, this Court cannot reopen the said issue and place reliance on a new report which has now been submitted before this Court.

Replying to the said objection of the learned A.G.A., Sri Singhal has invited the attention of the Court to a three Judges decision in the case of Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal reported in 2012 (10)SCC 489, where the right of a juvenile to claim such protection at any stage and in any court was considered.

The issue was noted in paragraph-1 of the judgemnt extracted hereunder:

"When should a claim of juvenility be recognised and sent for determination when it is raised for the first time in appeal or before this Court or raised in trial and appeal but not pressed and then pressed for the first time before this Court or even raised for the first time after final disposal of the case."

Again in Paragraph-11, the same was noted and then the Court went on to record the submissions in paragraph-24, which are extracted hereunder:

"Learned counsel for the State of Bihar on the other hand submitted that Legislature never intended to make Section 7A applicable to this Court after the final disposal of the case. He submitted that there was no provision in the Supreme Court Rules to re-open the concluded appeals or SLPs. Moreover, when SLP is filed, it is mandatory that no new ground or document shall be relied upon which has not been the part of record before the High Court and, therefore, if plea of juvenility has not been raised before the HighCourt, it cannot be raised before this Court. According to him, the power under the 2000 Act can be exercised only the Juvenile Board, Sessions Court or High Court after final disposal of the case but not this Court. He, however, submitted that the Supreme Court in exercise of its power under Article 142 may remand the matter to such forums, if it appears expedient in the interest of justice."

Further observations were made in paragraph-28 and then after noting decisions previously rendered on the issue by the Apex Court, the following ratio was laid down in paragraphs-35 and 36 thereof extracted hereunder:

"35. In Pawan, a 3-Judge Bench has laid down the standards for evaluating claim of juvenility raised for the first time before this Court. If Pawan8 had been cited before the Bench when criminal appeal of Abuzar Hossain @ Gulam Hossain came up for hearing, perhaps reference would not have been made. Be that as it may, in light of the discussion made above, we intend to summarise the legal position with regard to Section 7A of 2000 Act and Rule 12 of the 2007 Rules. But before we do that, we say a word about the argument raised on behalf of the State of Bihar that claim of juvenility cannot be raised before this Court after disposal of the case. The argument is so hopeless that it deserves no discussion. The expression, ''any court' in Section 7A is too wide and comprehensive; it includes this Court. Supreme Court Rules surely do not limit the operation of Section 7A to the courts other than this Court where the plea of juvenility is raised for the first time after disposal of the case."

36. Now, we summarise the position which is as under:

(i) A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in appeal court.

(ii) For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.

(iii) As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rule 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard and fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh2 and Pawan8 these documents were not found prima facie credible while in Jitendra Singh10 the documents viz., school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7 A and order an enquiry for determination of the age of the delinquent.

(iv) An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of age of the delinquent.

(v) The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.

(vi) Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised."

Sri Singhal, therefore, submits that the right to claim juvenility can be raised even if not raised at all in the court below. In the instant case, this right had been asserted and a decision rendered, which was challenged by the appellant and came up before this Court in a writ petition in which, the orders were passed on 13.10.2014 and as such by virtue thereof this right to raise the issue of juvenility cannot be now denied to the appellant at this stage. He, therefore, contends that even if the writ petition was declared to be infructuous, his right to raise the issue of juvenility still survives and, therefore, the same has to be considered, which may be either in this appeal or by way of a fresh decision in the matter in accordance with law.

The difficulty with us is that we are sitting in a Division Bench for hearing a regular criminal appeal and, therefore, we are not exercising any appellate jurisdiction over any order that has been passed by a learned Single Judge of this Court in a writ jurisdiction. Consequently, this raises an issue of law, which deserves to be answered by way of a reference, as in our opinion, the writ petition, which was declared to be infructuous with liberty to raise an issue of juvenility about the rights so being asserted in the present appeal could not have declared the issue to be infructuous. If the writ petition was not maintainable and a revision lay as per Section 53 of the Act, then the Court could have converted the writ petition into a revision and then the matter could have been heard in accordance with the 2000 Act. The learned Single Judge even otherwise could not confer a jurisdiction on a Division Bench hearing a regular appeal against conviction under the Criminal Procedure Code, if the proceedings under the Juvenile Justice Act had become final. The procedure, therefore, recommended by the order dated 13.10.2014, does not appear to lay down the law correctly and, therefore, requires to be rectified which in the present set of circumstances can only be done by way of a reference or if permissible by way of a review of the judgment dated 13.10.2014.

The other issue would be the attraction of the doctrine of finality in the wake of the provisions of the Juvenile Justice Act, where Section 7(a) gives liberty to raise the issue of juvenility at any stage and before any Court in such proceedings. The power of review by the Juvenile Justice Board itself in such matters is available but the question would arise that if such an adjudication had been carried out under the provisions of the 2000 Act read with the 2007 Rules and the said Act being a special Act, can the same issue be raised in a regular criminal appeal as in the present case. Another issue is as to whether the Juvenile Justice Board has exclusive authority to entertain such issues under the Act subject only to appeal and revision as per Section 52 and 53 thereof.

In the instant case as indicated above there were two sets of proceedings attempted by the appellant and in this background the issue of finality has to be considered in this case. However, this has to be seen in the light of the decisions of the Apex Court which have been rendered lately widening the interpretation in relation to extension of such benefit. Reference may be had to the case of Abdul Razzaq Vs. State of U.P. reported in JT 2015 (3) SC 315. Paragraph 10 of the said judgment is extracted hereinunder:-

"Para. 10. The above provisions clearly show that even if a person was not entitled to the benefit of juvenilities under the 1986 Act or the present Act prior to its amendment in 2006, such benefit is available to a person undergoing sentence if he was below 18 on the date of the occurrence. Such relief can be claimed even if a matter has been finally decided, as in the present case."

Further notice can be taken of another decision of the Apex Court in the case of Ram Narain Vs. State of U.P., Criminal Misc. Petition No. 7526 of 2015, decided on 7.8.2015. This was a case where the accused was convicted and the judgment and conviction order of the trial court was confirmed by the High Court. The special leave petition was dismissed by the Supreme Court on 20.8.2004 and a review application was dismissed by the Apex Court on 13.10.2004. The accused under the advice of his counsel filed an application before the Juvenile Justice Board for declaring him to be a juvenile inspite of the conviction having attained finality as noted above and the Juvenile Justice Board vide order dated 16.11.2013 declared him to be below the age of 18 years at the time of the occurrence of the incident on the strength the evidence before it. Thereafter, it appears that since the conviction had been confirmed by the Supreme Court, a Criminal Misc. Petition No. 7526 of 2015 was filed before the Apex Court and the same has been allowed with a direction to release the accused therein by the aforesaid judgment. This was therefore also a case where the matter had already been finalised by the Apex Court long before in 2004 but 11 years thereafter his plea was accepted and he was directed to be released. Thus, the doctrine of finality has to be viewed in the peculiar facts of the present situation keeping in view the provisions of Rule 97 and 98 of the Juvenile Justice (Care & Protection of Children) Rules 2007.

While doing so one more fact deserves to be noticed about the applicability of the 2007 Rules in the State of U.P. The Act of 2000 was followed by rules having been framed in the State of U.P. in the year 2004, namely the U.P. Juvenile Justice (Care & Protection of Children) Rules 2004. The 2000 Act came to be amended in the year 2006 and a proviso was added to Section 68 of the Principal Act whereby the Central Government was empowered to frame model rules that were observed to apply to the State until rules in respect of the matters are framed by the respective State Government with a further direction that they shall conform to the model rules. In the instant case, the rules by the State of U.P. had been framed prior to the amendment of the Act in 2006.

Then came the Central Government Rules of 2007, namely the Juvenile Justice (Care & Protection of Children) Rules 2007. The question arose as to which of the rules would apply in the State of U.P. whereupon a reference was made by a learned Single Judge of this Court in the case of Jai Prakash Tiwari Vs. State of U.P. & another, Criminal Revision No. 4694 of 2011, the orders whereon passed on 6.12.2012. The learned Single Judge was of the opinion that in view of the pronouncements of the High Court and the provisions thereof this issue deserves to be resolved as to which of the rules will prevail as the preferences given in the U.P. Rules were in the alternative whereas in the Central Rules the priorities on evidence were fixed one after the another. The said reference is stated to be still pending and has not yet been decided. In the meantime, a learned Single Judge of this Court faced with the same situation decided the matter finally in the case of Smt. Leena Katiya Vs. State of U.P. & 2 others, Criminal Revision No. 2490 of 2013 wherein the judgment was delivered on 22.5.2015 holding that the Central Rules will prevail and the determination of juvenility would have to be made on the strength of Rule 12 of the 2007 Rules. The said judgment is subject matter of Special Leave to Appeal (Crl.) No. 5373 of 2015 where the Apex Court vide order dated 24.7.2015 has been pleased to stay further proceedings in the said case and the matter according to the status report available on the Internet Site of the Apex Court indicates that the case is likely to be listed on 11.9.2015.

In addition thereto, it would be apt to mention that in a matter arising out of the State of Jharkhand a school leaving certificate was made the basis for extending the benefit to a juvenile which decision is reported as Ranjeet Goswami Vs. State of Jharkhand and another, (2014) 1 SCC 588. In a matter arising from the State of U.P. in the case of Nagendra @ Wireless Vs. State of U.P., Criminal Appeal No. 13 of 2015, decided on 5.1.2015, the said decision in the case of Ranjeet Goswami (supra) was cited with a plea that such a school leaving certificate should be accepted for declaring the accused to be a juvenile. The Apex Court rejected the said plea and held that after the promulgation of the 2007 Rules, the manner of entertaining evidence in order of priority for deciding as to whether an accused is juvenile or not, Rule 12 of the 2007 Rules would prevail and also held that the decision in the case of Ranjeet Goswami (supra) cannot be of any precedential value as it had not considered Rule 12 of the 2007 Rules. Thus the same also clarifies, at least in the State of U.P., that the 2007 Rules would prevail.

There is yet another dimension relating to interpretation of Section 7-A of the 2000 Act which is reflected in the latest decision of the Apex Court arising from the State of U.P., Rinku @ Uma Shankar Mishra Vs. State of U.P., Criminal Appeal No. 1104 of 2015. In the said judgment it appears that in the Special Leave to Appeal under Article 136 filed by the accused therein against the judgment of the High Court a plea of juvenility was taken on the strength of a matriculation certificate which was placed before the Apex Court. The Apex Court got an inquiry made from the authority which had issued the certificate and when an affidavit was filed the same was accepted and the accused was extended the benefit of juvenility. From a perusal of the judgment, it appears that the matter does not seem to have been sent to the Juvenile Justice Board and the issue was disposed of by the Apex Court itself after getting the certificate verified from the competent authority.

The question of finality therefore has to be examined from the point of view of the aforesaid decisions as well on determination as to whether the 2007 Rules will apply or the Rules of 2004 would apply, which is under reference before a division bench as per the referring order dated 6.12.2012 by a learned Single Judge of this Court in the case of Jai Prakash Tiwari (supra) and is also subject matter of consideration by the Apex Court in the case of Smt. Leena Katiyar (supra). It has to be resolved as to how many opportunities can be availed of in any court at any stage, as in the present case even after a final disposal by the competent court under the Act, and whether the doctrine of finality can be pressed into service and to what extent. This line of investigation is necessary while dealing with the present reference in the context of finality as a discipline, a finding arrived at between parties sought to be reopened in collateral proceedings, principles of res judicata and public policy. In a criminal proceeding under the Criminal Procedure Code there is a statutory bar under 362 Cr.P.C. and thus no review is permissible whereas under the 2000 Act and the Rules framed thereunder the Juvenile Justice Board itself has the power of review and the element of finality appears to be diluted further with Rule 97 and 98 in pending as well as disposed off cases. It is here that the interplay of Rule 97 and 98 of 2007 Rules has also to be taken into consideration where such benefit has been extended under law both in pending and decided cases.

The principle of issue estoppel has been applied in criminal trials as well. See Para 19 of Ashwini Kumar @ Ashu Vs. State of Punjab, 2015 (6) SCC Pg. 308. Can therefore a plea of juvenility, if decided, be allowed to be reopened again on discovery of evidence that may require assessment, if of some probative value. Then there is another clarification required that if under the 2000 Act, supposing a plea of juvenility is determined and reaches upto the stage of revision before the High Court and gets confirmed by the apex court, can it still be examined again, in the light of the phrases of Section 7A "in any court" and "at any stage" and "even if the matter has been finally disposed off", subsequently in a regular trial or in a regular appeal, as in the present case, under the Criminal Procedure Code. And then whether this can be done treating the proceedings before the Board under the 2000 Act to be somewhat summary and not finally binding on the court holding a regular trial or hearing an appeal where the assessment of witnesses and evidence can be probed and demeanour as well as probity can be examined under substantive rules of evidence and procedure. After all which proceedings will ultimately prevail and would become final at what stage. This is required to be answered as the process of law should bring about certainty through a decision and cannot be allowed to become an infinite engine of unending and open ended process for redetermination of same issues again and again.

This issue will have to be further examined in the light of Section 391 Cr.P.C., where even otherwise a Court of criminal appeal under the Criminal Procedure Code has the power to entertain additional evidence. This has to be viewed from the point of view that the said special Act for juveniles itself makes a provision for a revision before the High Court under Section 53 of the 2000 Act against an order under the said Act.

Consequently, we frame the following questions to be referred before Hon'ble the Chief Justice to be considered by an appropriate Bench to answer the same in order to lay down the law correctly in view of what has been stated hereinabove:

(I) Whether the right of a juvenile to raise the issue of juvenility can be denied, by dismissing a writ petition as infructuous and then permitting him to raise the issue in a criminal appeal when the same issue had been raised before the Juvenile Justice Board and an appeal had been decided in accordance with Section 52 of the 2000 Act as in the present case, on applying the doctrine of finality?

(II) Whether the law laid down by prescribing a procedure of allowing the question to be raised in a criminal appeal as an alternate substitute through a miscellaneous application under the judgment dated 13.10.2014 by the learned Single Judge is correct or not?

(III) Whether in view of the law laid down by the Apex Court particularly in the case of Abuzar Hossain @ Gulam Hossain (supra) and Abdul Razzaq Vs. State of U.P. (supra), the issue presently raised, would also stand covered by the ratio and the observations made therein or not ?

Let the papers be laid before Hon'ble the Chief Justice for appropriate orders for answering the aforesaid questions and then the matter be placed accordingly before the appropriate Court for proceeding in this appeal. A copy of the order may be made available to the learned A.G.A. free of charges to address the Court on the issues involved. Learned counsel for the appellant is directed to bring on record the orders passed by the Juvenile Justice Board and the appellate orders that are not already filed.

Order Date :- 20.8.2015

Ashish Pd.