Prince @ Prashant Thru. His Father ... vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 13083 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 

 
Case :- CRIMINAL REVISION No. - 439 of 2023
 

 
Revisionist :- Prince @ Prashant Thru. His Father Raj Kumar
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Civil Sectt. Lko. And 3 Others
 
Counsel for Revisionist :- Anjani Kumar Dvivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

Heard learned counsel for the revisionist, learned AGA for the State and perused the material available on record.

The instant Criminal Revision under Section 397/401 Cr.P.C. has been filed against the judgment and order dated 6.4.2023 passed by the learned Additional Sessions Judge/Special Judge, POCSO Act Room No. 12, Sultanpur in special sessions trial no. 256 of 2023 (State Vs. Sudama and two others) under Sections 363, 366, 506 I.P.C. and Section 5/6 of the POCSO Act arising out of F.I.R. No. 0270/2022 under Sections 363, 366, 506 I.P.C. Police Station- Musafirkhana, Amethi.

Leaned counsel for the revisionist submitted that that the brief factual matrix of the case is that a first information report dated 22-10-2022 has been lodged against revisionist and two others bearing FIR Case Crime no. 0270/2022. u/s 363/366/506 I.P.C. leveling allegations that his minor daughter ( student of class 12) was left to school by him on 12-09-22 was not found at school and returned on 15-09-22 who told after returning that she was allured and taken away by the revisionist and two others as the daughter of complainant was returned after two-three days and was in communicative, after asking told the incident that she was threatened that she will bekidnapped again and therefore the FIR was lodged u/s 363/ 366 and 506 L.P.C. after 5 days of alleged returning of the alleged victim. He further submitted that the statement of the victim under Section 164 Cr.P. was also recorded and allegation of rape has roped mentioning that she was going with revisionist believing on the statement of revisionist and Sudama where she was raped and subsequently handed over to one Anuj Prajapati while on the subsequent it has came in to light that she has affair with Anuj. He also submitted that the police has not investigated the matter in a fair way and send the minor revisionist behind the bar in an illegalmanner while it is very clear from CDR that the alleged victim was went to Anuj Prajapati herself due to love and affectation and as the revisionist was neighbor of alleged victim who also talks with victim as being the neighbor sometimes was sent to jail to hide the illegal works done by the alleged victim herself.

He further submitted that the charge sheet has prepared on 06-12-2022 but the cognizance has taken on 08-02-2023 therefore the application dated 06-01-2023 could not be heard and therefore again revisionist moved the application dated 28-02-2023 through his natural guardian (mother) supported with an affidavit in which report was called for from the police concerned. The revisionist placed his original transfer certificate of the school admission for the primary education where the date of birth is mentioned as 15-03-2007 but neither the police nor the court below has taken cognizance on same and rejected the application of revisionist in a very cryptic manner. The copy of school leaving certificate for class 5" with mark sheet is being filed herewith as Annexure no. 8 to this revision. He further submitted that the police has submitted his report taking reliance on the school leaving certificate of class 8th and 9th (where revisionist never took admission) mentioning the date of birth as 16-05- 2004 annexing the copies of certificates of the same also where it has shown that admission was taken on 22-05-2017 and 28-09-2020 respectively but didn't tried to know that how the date of birth has been mentioned as 16-05-2004 at the time of admission on 22-05-2017 If the certificate issued by the Saraswati Vidya Mandir has relied it is clear that admission was taken in class 6" as admission was taken on 22-05-2017 and school was leaved on 31-03-2020 due to passing class 8" examination therefore the transfer certificate of classed 5thfrom the school "Sarawati Vidya Mandir" was required but the same was not produced and as the admission was taken on 22- 05-2017 it could not be stated that revisionist has took admission initially on 22-05-2017 in the age of 11 years first time without any previous education. The copy of report along with the documents produced are being filed herewith as Annexure no. 9 to this revision.

Learned counsel for the revisionist lastly submitted that it is very respectfully submitted here that the learned court below didn't follow the procedure of the section 9 and 94 of Juvenile Justice (Care & Protection of Children) Act, 2015 (in short "the Act, 2015") and rejected the application for declaration of juvenile of the revisionist holding that it is not maintainable, in a very illegal and arbitrary manner. He further submitted that the order passed by the Learned Additional Session Judge / Special Judge, POCSO Act, room no. 12, Sultanpur isagainst the eyes of law and the revisionist preferred the present revision. Learned counsel for the revisionist submits that the revisionist preferred an application for declaring his juvenility before the trial court but the trial court rejected the claim of the revisionist for declaring him juvenile on the basis of school learning certificate of class 9th of the revisionist and failed to consider the document which was provided by the revisionist before the trial court. Lastly, learned counsel for the revisionist submitted that if any dispute arises in respect of the age of the revisionist then the age of the revisionist be decided as per procedure prescribed under Section 9 and Section 94 of the Act. The said sections 9 and 94 of the Act, 2015 read as under:

"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.

94. Presumption and determination of age.- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining --

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

The further submission the counsel for the revisionist is that the trial court rejected the application of the revisionist in a cursory manner on 6.4.2023 without conducting any inquiry under the Act, 2015 and without following the procedure under Section 9 and 94 of the Act, 2015 for determining the age of the revisionist.

Learned AGA vehemently opposed and submitted that the trial court rejected the application of the revisionist after applying judicial mind. Thus, the impugned order passed by the trial court is not liable to be quashed.

Considering the entire facts and circumstances of the case, learned trial court is directed either to decide the application of the revisionist for claiming the juvenility of the revisionist as per sections 9 and 94 of the Act, 2015 or to direct the Juvenile Justice Board to decide the matter within one month from the date of production of a certified copy of this order before the trial court. Till determination of claim of the juvenility, no final order shall be passed. The impugned order dated 6.4.2023 passed by the trial court is hereby quashed.

Accordingly, the instant revision is hereby allowed.

Let this order be communicated to the court concerned for necessary compliance.

Order Date :- 27.4.2023

Anuj Singh