Ankita Singh vs State Of U.P. And Another
2021 Latest Caselaw 1582 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- CRIMINAL REVISION No. - 1576 of 2020
 

 
Revisionist :- Ankita Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Neeraj Pandey,Raj Kumar Sharma
 
Counsel for Opposite Party :- G.A.,Ruchi Mishra
 

 
Hon'ble Om Prakash-VII,J.

List revised. None present for the private opposite party.

Heard S/Shri Raj Kumar Verma and Neeraj Pandey, learned counsel appearing for the revisionist as well as learned AGA for the State.

The present revision has been filed by the revisionist Ankita Singh with the prayer to set aside the order dated 27.07.2020 passed by Additional Sessions Judge, Court No. 2, Fatehpur in Criminal Appeal No. 14 of 2020 (Ashish Dwivedi Vs. State of U.P.) arsing out of Case Crime No. 394 of 2017, under Sections 376 & 504 IPC, Police Station Khaga, District Fatehpur.

Submission of learned counsel for the revisionist is that initially in this matter one order was passed by the concerned Juvenile Justice Board on 13.03.2019 declaring the opposite party no. 2 (the accused) as juvenile finding his age between 18-19 years and on 16.03.2019 case was referred to the Children Court for trial as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. Later-on, opposite party no. 2 approached this Court invoking its inherent jurisdiction through application U/S 482 Cr.P.C. No. 44516 of 2019 and same was dismissed on 05.12.2019 by this Court with the observation that there was no illegality, infirmity or perversity in the order dated 16.03.2019. It is further submitted that again one application was moved by the opposite party no. 2 before the Children Court stating therein that order dated 16.03.2019 be recalled and matter be referred to the Juvenile Justice Board. The concerned Children Court rejected the prayer observing that appeal is maintainable against the order dated 16.03.2019. Thereafter, opposite party no. 2 suppressing the order dated 05.12.2019 passed in the aforesaid application under Section 482 Cr.P.C. preferred an appeal before the Sessions Judge concerned, which was allowed and the order dated 16.03.2019 was set aside remanding back the matter to the Juvenile Justice Board to pass afresh order. Referring to the order dated 27.07.2020 (impugned order), it is further submitted that lower appellate court has wrongly construed that Article 20(1) of the Constitution of India is applicable to the procedural law also. It is further submitted that provisions of Article 20(1) of the Constitution of India is applicable only in cases of substantive law. Thus, observation recorded by the lower appellate court is illegal. Since order dated 16.03.2019 has attained finality in the aforesaid application under Section 482 Cr.P.C. and same was suppressed by the opposite party no. 2 before the Sessions Judge concerned at the time of hearing the appeal, the order dated 27.07.2020 (impugned order) on this ground also becomes illegal and is liable to be set aside. At this juncture, learned counsel for the revisionist also referred to the provisions of Section 9 and Section 111 of The Juvenile Justice (Care and Protection of Children) Act, 2015 and further argued that present criminal revision is liable to be allowed and impugned order passed by the lower appellate court is liable to be set aside. In support of the submissions, learned counsel for the revisionist placed reliance on the law laid down by Hon'ble Supreme Court in the case of Pratap Singh Vs. State of Jharkhand and another (2005) 3 SCC 551.

On the other hand, learned AGA has opposed the prayer.

I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully.

A perusal of the record reveals that on 13.03.2019, opposite party no. 2 was declared juvenile finding his age between 16-18 years. Matter was referred to the children court on 16.03.2019. Opposite party no. 2 challenged the order dated 16.03.2019 through the application U/S 482 Cr.P.C. No. 44516 of 2019 and same was decided vide order dated 05.12.2019, which is as under:-

Case :- APPLICATION U/S 482 No. - 44516 of 2019

Applicant :- Ashish Dwivedi (Minor)

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Rajesh Yadav,Ruchi Mishra

Counsel for Opposite Party :- G.A.

Hon'ble Rajul Bhargava,J.

Heard Sri Rajesh Yadav, holding brief of Ms. Ruchi Mishra, learned counsel for the applicant as well as learned A.G.A. for the State and perused the material available on record.

The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 16.3.2019 passed by learned Principal Magistrate, Juvenile Justice Board, Fatehpur in Misc. Case No.80 of 2018 (State vs. Ashish Dwivedi), arising out of Case Crime No. 394 of 2017, under Sections 376, 506 I.P.C., Police Station- Khaga, District- Fatehpur.

Learned counsel for the applicant has assailed the impugned order on the ground that the Juvenile Justice Board vide judgment and order dated 13.3.2019 declared the revisionist juvenile in conflict with law and determined his age to be more than 16 years. Thereafter, on 16.3.2019, the impugned order was passed under Section 15 of the Act which is wholly illegal. It is further argued that the Juvenile Justice Board could not have reviewed its order passed on 13.3.2019. Therefore, the impugned order dated 16.3.2019 is patently illegal.

I am of the considered opinion that the submission made by learned counsel for the applicant is wholly misconceived as the Board after declaring the revisionist to be more than 16 years of age then exercised power under Section 15 of the Act which stipulates that "in case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of Section 18."

I do not find any illegality or perversity in the order dated 16.3.2019 passed by learned Principal Magistrate, Juvenile Justice Board, Fatehpur.

The present criminal misc. application under Section 482 Cr.P.C. is devoid of merits and wholly misconceived, therefore, the same is, accordingly, dismissed."

It further appears that opposite party no. 2/ accused suppressing the order dated 05.12.2019 passed in the aforesaid application under Section 482 Cr.P.C., as has been stated by the learned counsel for the revisionist, moved fresh application before the children court challenging the order dated 16.03.2019 and same was rejected by the Court concerned with the observation that against the order dated 16.03.2019, appeal is maintainable. It further appears that opposite party no. 2 preferred an appeal against the said order dated 16.03.2019 before the Sessions Judge concerned and the Sessions Judge allowed the appeal vide impugned order remanding back the matter before the Juvenile Justice Board to pass afresh order. While passing the impugned order, court below has taken into consideration the provisions of Article 20(1) of the Constitution of India and has observed that criminal law cannot be applied retrospectively. It was also observed that The Juvenile Justice (Care and Protection of Children) Act, 2015 was in force since 15.01.2016. Hence, applicants' case will be dealt with under the Juvenile Justice (Care and Protection of Children) Act, 2000.

Before analyzing / comparing the submissions of the the learned counsel for the parties with the observations recorded by the lower appellate court in the impugned order, I find it necessary to quote the provisions of Article 20(1) of the Constitution of India as well as provisions of Section 9 and Section 111 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which are as under:

"20. Protection in respect of conviction for offences.-(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

Section 9:-Procedure to be followed by a Magistrate who has not been empowered under this Act.-(1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.

(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:

Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.

(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.

(4) In case a person under this section is required to be kept in protective custody, while the person?s claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety.

Section 111:- Repeal and savings.?(1) The Juvenile Justice (Care and Protection of Children) Act, 2000 is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Act shall be deemed to have been done or taken under the corresponding provisions of this Act."

Article 20(1) of the Constitution of India is related to substantive offences. Issue involved in the present matter is purely procedural in nature. Proviso to Section 9(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 speaks that "such a claim shall be determined in accordance with the provisions contained in this Act and the rules made there-under even if the person has ceased to be a child on or before the date of commencement of this Act". Section 111 of the Act is repeal and savings clause and it clearly reveals that with the enactment of The Juvenile Justice (Care and Protection of Children) Act, 2015, the old Act "The Juvenile Justice (Care and Protection of Children) Act, 2000" was repealed. If the observations recorded by the lower appellate court in the impugned order are taken into consideration in light of the legal provisions quoted here-in-above, it is clear that while allowing the appeal, lower appellate court has committed illegality. It is also clear that order passed by this Court in the aforesaid application U/S 482 Cr.P.C. has not been considered. Had the order dated 05.12.2019 passed in the aforesaid application under Section 482 Cr.P.C. been placed by the opposite party no. 2 before the lower Appellate Court, impugned order would not have been passed. Since order dated 16.03.2019 has attained finality, there was no occasion to set aside the same in the appeal by the lower Appellate Court.

In view of the above discussions, the Court is of the opinion that there is force in the submissions made by the learned counsel for the revisionist. The impugned order 27.7.2020 suffers from infirmity and illegality and same is liable to be set aside and the criminal revision having merits is liable to be allowed.

Accordingly, the present revision is hereby allowed and the impugned order dated 27.07.2020 passed by Additional Sessions Judge, Court No. 2, Fatehpur in Criminal Appeal No. 14 of 2020 (Ashish Dwivedi Vs. State of U.P.) arsing out of Case Crime No. 394 of 2017, under Sections 376 & 504 IPC, Police Station Khaga, District Fatehpur is set aside.

The party shall file computer generated copy of this order downloaded from the official website of High Court, Allahabad. The concerned Court / Authority / Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 27.1.2021

Sanjeet