Naresh Kumar vs State Of U.P.
2018 Latest Caselaw 149 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Court No. - 10
 
(Crl. Misc. Case No.113051 of 2016)
 
In re;
 
Case :- CRIMINAL APPEAL No. - 528 of 2016
 
Appellant :- Naresh Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rama Kant Jayswal
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Anil Kumar,J.

Hon'ble Sanjay Harkauli,J.

Heard Shri Rama Kant Jayswal, learned counsel for the applicant, learned AGA for the State and perused the record.

Learned counsel for the applicant while pressing the application for considering the applicant's juvenility submits that during the pendency of Sessions Trial No.366/2000 arising out of Case Crime No.167/1999 under Sections 302, 352 I.P.C., P.S.-Atrauli, District-Hardoi, on 20.10.2010, an application has been moved on behalf of the applicant/Naresh Kumar Dixit for declaring him as juvenile, which was rejected vide order dated 09.06.2015 passed by Additional Sessions Judge/Special Judge (E.C.Act), Hardoi. Against the said order, Criminal Revision No.402 of 2015 has been filed before this Court, which was allowed by order dated 22.04.2016. The operative portion of the same reads as under :-

"In the result, the revision is allowed and the impugned order dated 09.06.2015 passed by the learned trial court is set aside. It is directed that the learned court below shall consider the claim of juvenility of the revisionist again in view of the provisions of Juvenile Justice Act and the relevant case laws on the subject."

In view of the order dated 22.04.2016, an another application has been moved for considering the claim of the juvenility of the accused, which was rejected vide order dated 15.07.2016 passed by the trial court on the ground that the final judgment in the matter in question has been passed on 04.04.2016. Thereafter, the same was challenged by the applicant by filing Criminal Revision No.821 of 2016 before this Court, which was disposed of vide order dated 30.08.2016. The operative portion of the same is being quoted herein below :-

"In these circumstances, the revision is disposed of by stipulating that it would be open for the revisionist to make an appropriate application before the Appellate Court by bring the aforesaid facts to the notice of the Appellate Court and pray that the relevant record i.e. the record in respect of the inquiry held into the claim of juvenility of the revisionist be forwarded to the trial court so as to enable it to comply with the order dated 22.04.2016 passed by this Court in criminal revision no.402 of 2015."

Thereafter, an application (Crl. Misc. Application No.91038 of 2016) has been moved in the present appeal and the same was rejected vide order dated 21.09.2016. The operative portion of the same reads as under :-

"Accordingly, the application in question is rejected, however, as prayed, liberty is given to the accused/Naresh Kumar Dixit to claim juvenility in the appeal as per the provision of Juvenile Justice (Care and Protection of Children) Act, 2015."

Learned counsel for the applicant submits that in view of the above stated facts, the present application moved on behalf of the application in respect to the claim of the juvenility may be considered by this Court.

In this regard, he has placed reliance on the provisions as provided under Sub-section (1) and (2) of Section 8 of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as Act), which reads as under :-

"(1) Notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, the Board constituted for any district shall have the power to deal exclusively with all the proceedings under this Act, relating to children in conflict with law, in the area of jurisdiction of such Board.

(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Children's Court, when the proceedings come before them under section 19 or in appeal, revision or otherwise."

Accordingly, he has submitted that as per Sub-section (2) of the Act, this Court has got same power which has been conferred on the Board by or under this Act while considering the matter in respect to the claim of the juvenility of the applicant. Once the entire material is available on record before this Hon'ble Court, the present application should be considered on the facts and circumstances of the case.

Learned AGA while opposing the prayer made on behalf of the applicant submits that the  the claim of the juvenility of the applicant is to be considered by the Juvenile Justice Board as per Section 25 of the Act as being court of first instance and once the said forum is available to the applicant under the Act, he should approach the same.

We have heard learned counsel for the parties and gone through the records.

The core question which is to be considered in the present case is that whether as per the provisions of Sub-section (2) of Section 8 of the Act, it is mandatory on the part of the Court to exercise the power conferred on the Board while considering the application moved on behalf of the applicant for considering the claim of the his juvenility in an appeal filed by him under Section 374 Cr.P.C. against the judgment and order dated 04.04.2016 passed in S. T. No.366/2000 or not.

From the bare reading of Sub-section (2) of Section 8 of the Act, the position which emerges out is that the legislature has used the word 'may' therein.

Thus, we need to first consider as to what was the import of the words 'may' used in Sub-section (8) of Section 2 of the Act.

In the case of State of Uttar Pradesh vs. Jogendra Singh, 1964 (2) SCR 197, Hon'ble the Apex Court has held that the word 'may' is capable of meaning 'must' or 'shall' in the light of the context in which the word is used and where a discretion is conferred upon a public authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a command.

In the case of Govindlal Chhaganlal Patel vs. the Agricultural Produce Market Committee, Godhra and Others, 1975 (2) SCC 482, Hon'ble the Apex Court has held that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed and, therefore, the use of the word 'shall' or 'may' is not conclusive on the question where the particular requirement of law is mandatory or directory.

Hon'ble the Apex Court, in the case of State of U.P. vs. Jogendra Singh (Supra), had occasion to consider the use of word 'may' in Rule 4 (2) of the Uttra Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 and in this regard, in paragraph no.8, the Apex Court has held as under :-

"Rule 4(2) deals with the class of gazetted government servants and gives them the right to make a request to the Governor that their cases should be referred to the Tribunal in respect of matters specified in clauses (a) to (d) of sub-rule (1). The question for our decision is whether like the word "may" in rule 4(1) which confers the discretion on the Governor, the word "may" in sub-rule (2) confers discretion on him, or does the word "may" in sub-rule (2) really mean "shall" or "must" ? There is no doubt that the word "may" generally does not mean "must" or "shall". But it is well-settled that the word "may" is capable of meaning "must" or "shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of rule 4(2) would be frustrated if the word "may" in the said rule receives the same construction as in the sub-rule (1). It is because in regard to gazetted government servants the discretion had already been given to the Governor to refer their cases to the Tribunal that the rule-making authority wanted to make a special provision in respect of them as distinguished from other government servants falling under rule 4(1) and rule 4(2) has been prescribed, otherwise rule 4(2) would be wholly redundant. In other words, the plain and unambiguous object of enacting rule 4(2) is to provide an option to the gazetted government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise. The rule-making authority presumably thought that having regard to the status of the gazetted government servants, it would be legitimate to give such an opinion to them. Therefore, we feel no difficulty in accepting the view taken by the High Court that rule 4(2) imposes an obligation on the Governor to grant a request made by the gazetted government servant that his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal under the Rules."

In Ramji Missar and Anr. vs. State of Bihar (AIR 1963 SC 1088), the Apex Court again considered Sections 11 (1) and 6 (2) of Probation of Offenders Act, 1958 and in para no.16, has held as under :-

"Though the word "may" might connote merely an enabling or permissive power in the sense of the usual phrase "it shall be lawful", it is also capably of being construed as referring to a compellable duty, particularly when it refers to a power conferred on a court or other judicial authority. As observed in Maxwell on Statutes :

Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they 'may' or 'shall' if they think fit, or 'shall have power' or that, 'it shall be lawful' for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have - to say the least - a compulsory force." 

In view of the above said facts, the word "may" which has been used by the legislature in Sub-section (2) of Section 8 of the Act is not mandatory in nature but it is obligatory.

Taking into consideration the said fact, coupled with the fact that once the legislature has provided the forum i.e. Juvenile Justice Board for considering the application moved by the applicant in respect to the claim of the juvenility pending in an appeal because the Juvenile Justice Board while considering the same can get the documentary evidence and other material for its consideration before deciding the plea of juvenility taken by the applicant which cannot be done by this Court effectively in an appellate jurisdiction under Section 374 Cr.P.C..

For the foregoing reasons, we do not find any merit in the application in question, accordingly, the same is rejected.

However, as prayed, applicant is given liberty to move an application before the Juvenile Justice Board for considering the claim of his juvenile taking the plea in regard to the enquiry which has already been conducted in the matter in question. If such an application is moved within a period of three weeks from the date of receiving a certified copy of this order, the same shall be decided by the Juvenile Justice Board, expeditiously, preferably, within a period of two months thereafter in accordance with law and copy of the same shall be sent to this Court.

The applicant shall be at liberty to obtain certified copies of all the matters which in his opinion may be relevant for consideration of question of juvenility of the accused and place it before the Juvenile Justice Board. All such material as so placed shall be duly considered by the learned Juvenile Justice Board.

.

(Sanjay Harkauli,J.)  (Anil Kumar,J.)

Order Date :- 23.4.2018/Mahesh