Allahabad High Court
Ajay Kumar And Ors.3 vs The State Of U.P. on 4 April, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- CRIMINAL APPEAL No. - 561 of 2001
Appellant :- Ajay Kumar And Ors.3
Respondent :- The State Of U.P.
Counsel for Appellant :- R.N.Shukla,Kapil Misra,Rajeev K. Bajpai
Counsel for Respondent :- Govt.Advocate
Hon'ble Shree Prakash Singh,J.
Order on C.M.Application No. 99449 of 2021
Heard learned counsel for the applicant/appellant no. 3, Sri Anirudh Kumar Singh,learned A.G.A-I for the State and perused the record.
The instant criminal appeal under section 374 readwith Section 389 of the Code of Criminal Procedure has been filed against the Judgment and Order dated 24-07-2001, passed by Additional District & Sessions Judge (F.T.C.-II), Sultanpur in Sessions Trial No. 173 of 1992, arising out of Case Crime No. 476 of 1991, under sections 307/504/506 I.P.C., Police Station-Kotwali Nagar, District-Sultanpur, whereby the appellants were convicted and sentenced for imprisonment of seven years with fine of Rs. 2,000/-each.
Learned counsel appearing for the appellant no. 3 submits that the first information report was lodged on 17-05-1991, and thereafter, Chargesheet was filed and charges were framed. After hearing the submissions of the parties, the impugned Judgment and order was passed. He submits that the appellant no. 3, Vinod Kumar was juvenile at the time of the incident as his date of birth as per the High School Marksheet and Certificate is 03-06-1975 and the date of incident is 17-05-1991 and thus, he was about 16 years and one month of the age at the time of the incident. He further added that whatsoever the reason was there, the plea of the juvenility could not be raised before the trial court and this is being raised at this stage. As per the law settled, the plea of juvenility can be raised at the stage of trial and even at the stage of appeal as well and thus, his submission is that since the appellant no. 3 was juvenile at the time of incident and therefore, his case may be dealt with as per the provisions prescribed in a case of juvenile.
Adding his arguments, he submits that this court vide order dated 13-12-2022 called for a report from the Police Station-Kotwali Nagar, District-Sultanpur with respect to the fact that as to whether the High School Certificate pertaining to appellant no. 3 is having any discrepancy.
He submits that in compliance of the order aforesaid, the State has filed a Supplementary Counter Affidavit on 17-01-2023 and he has drawn attention towards para nos. 7 to 9 of the said affidavit and specific facts have been mentioned that the accused-appellant no. 3 passed the High School Examination in the year 1991 and his date of birth as mentioned is 03-06-1975 and thus, the police authorities found no discrepancy in the Marks-sheet submitted/disclosed by the appellant no. 3.
In support of his contentions, learned counsel appearing for the appellant no. 3 has also placed reliance on a Judgment reported in 2012(10)SCC 489, Abuzar Hossain Vs. State of West Bengal and has referred paragraph 39.1 of the abovesaid judgement, wherein it has categorically been held that the claim of juvenility can be raised at any stage, even after trial is concluded and appeal is decided.
Paragraph 39.1 is extracted as under :-
39.1 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 as 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.'
Referring the aforesaid, he submits that the plea of juvenility can be raised at any stage. Further it is also apparent from the enquiry which has been done by the police authorities discloses that the High School Certificate is genuine, wherein the date of birth of the appellant no. 3 is mentioned as 03-06-1975 and thus, the appellant no. 3 has a case and it is proved that the appellant no. 3 was juvenile at the time of the incident and thus, the benefit of the provision in a case of juvenile can also be accorded to the appellant no. 3.
On the other hand, learned A.G.A. appearing for the State has opposed the contentions aforesaid and has drawn attention of this court towards the record wherein the name of the appellant no. 3 has been mentioned as Vinod Kumar S/o Anwari Randi. He submits that father's name of the appellant no. 3 has not been mentioned in the first information report and in the other documents, which have been adduced at the time of trial before the trial court. His submission is that this fact itself is indicative that there was certain discrepancy or concealment of facts in the documents and thus, the appellant no. 3 cannot be accorded benefit of the provisions of juvenility as provided in Section 7-A of Juvenile Justice (Care and Protection of Children) Act,2000. He thus, submits that there is no merit in the arguments advanced by the learned counsel for the appellant no. 3.
Considering the submissions advanced by the learned counsels for the parties and after perusal of material placed on record, it is evident that this court vide order dated 13-12-2022 directed the police authorities for making an enquiry to look into the discrepancy in the High School Certificate of the appellant no. 3 and thereafter, an affidavit was filed on behalf of the Circle Officer, Baldirai, district-Sultanpur, wherein it has specifically been mentioned in para no.9 that the accused-appellant no. 3 has completed his High School Examination in the year 1991 and his date of birth as mentioned in the High School Certificate is dated 03-06-1975. Para no. 9 of the affidavit is extracted hereinunder:-
"?? ?? ???????-7 ?? ??? ?????? ??? ?? ??????? ?? ???? ?? ?? ????? / ???????? ?? ?????? ???? 1991 ??? ??? ????? ?? ??????? ????????? ??? ?? ???????? ?? ??? ?????? ???? ???????? 03.06.1975 ????? ??? ????? ??????? ?? ?????? ?? ??? ???? ?????? ?? ??? ??? ?? ? ?? ?????? ???????? ?? ????? ????? ?????? ?? ???? ?? ??? ??? ?? ??? ????????? ????? ????? ???? ????? ???? ?? ???? ??? ??? ???? ????? ????? ?? ??? ???? ???? ?????????? ??? ????? ???? ??? ???? ???"
Section 7-A of the Juvenile Justice(Care & Protection of Children)Act,2000 provides that 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 inquiry.
The intent of the legislature so far as the wording started in the provisions is that whenever and thereafter 'before any court' is indicative of law that the claim of the juvenility can be raised at any stage. Further after enquiry as was directed to be held by this court, prima-facie, this fact emerges out that date of birth of the appellant no. 3 is 03-06-1975 and therefore, if it is counted from the date of the incident, the appellant no. 3 was about 16 years and some months on the date of the incident and thus, at the first instance, he could be said to be as juvenile subject to further enquiry by the Juvenile Justice Board
Considering the submissions and discussions made hereinabove, this court finds force in the arguments advanced by the learned counsel for the appellant no. 3 and thus, appellant no. 3 is at liberty to put claim of the juvenility before the Juvenile Justice Board concerned within a period of 15 days from the date of passing of this order.
If such claims are raised, the Juvenile Justice Board concerned shall decide the same within further period of 45 days.
The Juvenile Justice Board is further directed to submit its report by the next date.
With the aforesaid observations/direction, the instant application is hereby disposed of.
Order in Criminal Appeal
List this matter in the last week of May,2023.
Order Date :- 4.4.2023
AKS
