Allahabad High Court
Intezar vs State Of U.P. on 9 August, 2023
Bench: Ashwani Kumar Mishra, Syed Aftab Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:160360-DB
Court No. - 46
Case :- CRIMINAL APPEAL No. - 291 of 2010
Appellant :- Intezar
Respondent :- State of U.P.
Counsel for Appellant :- S.M. Asghar,Neeraj Pandey,Onkar Singh,V.M. Zaidi
Counsel for Respondent :- Govt. Advocate
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
This appeal is by the accused appellant Intezar son of Khurshid, who has been convicted in Session Trial No. 444 of 2004, arising out of Case Crime No. 425 of 2002 under Sections 302 IPC, Police Station Kandhla, District Muzaffarnagar and sentenced to life imprisonment.
As per the prosecution case, informant's son (deceased) had come to his shop which was inaugurated only two days back where he was offered sweet by the son of Khurshid, namely, accused Intezar by mixing some poisonous substance. The informant's son was admitted to the Government Hospital, Kandhla where he was referred to Shamli and he died on the way. The investigation proceeded and ultimately a charge-sheet was submitted. As per the report of the forensic science laboratory, the deceased died on account of poisoning. The viscera report had been preserved in which aluminum phosphite and poisonous alcohol was found. Charge-sheet was submitted whereafter trial commenced after the accused appellant denied the charges. The trial ultimately concluded with the judgment of conviction passed by the court below under Section 302 IPC in Session Trial No. 444 of 2004. The accused has been awarded life sentence alongwith fine of Rs. 5,000/- and in default of payment of fine to undergo additional imprisonment of six months. Aggrieved by the judgment of conviction and sentence, the accused appellant has preferred the present appeal. The appeal was admitted and has remained pending since 2010. The bail application of the appellant was, however, rejected on 10.12.2010.
It transpires that during the pendency of the present appeal, an application was filed on behalf of the appellant for declaring him to be a juvenile. This application is on record. An application was also filed before the Juvenile Justices Board, Agra, which came to be registered as Misc. Case No. 89 of 2017. The Juvenile Justices Board vide its order dated 20.04.2017 returned a finding of juvenility in favour of the accused appellant, whose age has been determined as 16 years 10 months 29 days on the date of offence. By a subsequent order of the Juvenile Justices Board dated 26.04.2017, the accused appellant has been released after noticing the fact that he has already been declared juvenile and had already undergone sentence of 7 years 5 months by then. Since the period of incarceration undergone by the accused appellant was more than the maximum period for which the juvenile could be imprisoned, as such the accused appellant has been released by the Juvenile Justices Board on 26.04.2017.
Orders passed by the Juvenile Justices Board holding the accused appellant to be below 18 years of age and directing his release has been given effect to in the year 2017 itself. Neither the informant nor the State has challenged the orders passed by the Juvenile Justices Board. Period of more than 6 years have expired since then.
When the matter was taken at last, an objection was taken by the State to the orders of the board on the ground that the informant had not been heard before passing such orders. Comments were called from the board in that regard which are not specific.
Be that as it may, we find that accused appellant has been declared juvenile by the Juvenile Justices Board and has already been released in the year 2017. We are not inclined to pursue the matter any further, particularly as neither the informant nor the State has challenged the orders of the Juvenile Justices Board.
In view of the materials placed on record, it is apparent that the appellant was a juvenile on the date of offence and, therefore, proceedings against him can be undertaken only, in accordance with the Juvenile Justice Act. The proceedings of Session Trial No. 444 of 2004, arising out of Case Crime No. 425 of 2002 under Sections 302 IPC, Police Station Kandhla, District Muzaffarnagar before the court of Sessions is, therefore, found to be in excess of jurisdiction in view of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000. By virtue of sub-section 2 of Section 7A, the sentence passed by the court against the juvenile shall thus have no effect. Sub-section (1) and (2) of Section 7A is relevant for the present purposes and is reproduced hereinafter:-
"(1) 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, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.]"
As the issue relating to criminality on part of juvenile can be examined by the Juvenile Justices Board, as such the records of the present appeal shall be forwarded to the appropriate Juvenile Justices Board for further necessary action in the matter. The conviction and sentence awarded to the juvenile by the court of session shall be deemed to have no effect.
Order Date :- 9.8.2023
RA
