Juvenile -X vs State Of U.P. And Another
2023 Latest Caselaw 16526 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Neutral Citation No. - 2023:AHC:115407
 
Court No. - 70
 
Case :- APPLICATION U/S 482 No. - 6596 of 2023
 
Applicant :- Juvenile -X
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Sushil Shukla,Aditya Prakash Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shekhar Kumar Yadav,J.

1. I have heard Mr. Sushil Shukla & Mr. Aditya Prakash Singh, learned counsel for the applicant, Mr. R.P. Mishra, learned A.G.A. for the State and perused the material available on record.

2. This application under Section 482 Cr.P.C. has been filed by applicant to quash the impugned order dated 03.02.2023 passed by learned ACJM, Khurja, District Bulandshahar in connection with Criminal Case No.3431 of 2016 arising out of Case Crime No.483 of 2016, under Sections 419, 420, 467, 468, 471 and 120-B IPC, Police Station Khurja Nagar, District Bulandshahar and for a direction to the learned Magistrate to comply with the order dated 18.05.2022 passed by Juvenile Justice Board, Bulandshshar so that trial of the aforesaid case be transferred under Section 18 (3) of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the "Act, 2015") before the Children's Court/POCSO Court, Bulandshahar having its jurisdiction.

3. In short, the facts in brief are that on 30.06.2016, the opposite party no.2 lodged the FIR against unknown persons alleging that on false promise of obtaining NOC from Pollution Board, U.P. to run his cold storage, the informant/opposite party no.2 was duped of Rs.40 lakh by unknown person, who asked him to make deposit the said amount into some bank account, where after the OSD of Hon'ble Chief Minister was promised to help him. It is further alleged that the informant/opposite party no.2 issued three cheques, i.e., cheque no.408173 dated 22.06.2016 amounting to Rs.20 lakh, cheque no.408174 dated 22.06.2016 amounting to Rs.10 lakh and cheque no.408175 dated 24.06.2016 amounting to Rs.10 lakh. Total Rs. 40 lakh has been deposited by the informant/opposite party no.2 through R.T.G.S. in the Account No.20321300148, State Bank of India, C.O.G Bazar, Agra. It is further alleged that when the informant/opposite party no.2 has inquired about the said account, it was found that the said account is opened in the name of Narendra Singh s/o Anil Singh, House No.144, New Abadi, Taj Nagri, Tajganj, Agra Mobile No.8171978713. Since then the informant/opposite party no.2 has contacted several times but the accused person has not responded. Thereafter, the informant/opposite party no.2 has approached the Samajwadi Karyalaya, Lucknow and met one Ashish Yadav, who has stated that he never called and some one has duped his money naming his name.

4. After lodging the FIR, the aforesaid matter was investigated and during investigation it was found that in the alleged commission of offence total eight persons were involved. Co-accused Rahees and other two co-accused persons including the applicant were arrested on 24.07.2016 and from their joint possession Rs.5.5 Lacs were recovered. After conclusion of investigation, the investigating officer has submitted charge sheet on 10.09.2016 against all eight accused persons including the applicant. Based upon charge sheet, the learned Additional Chief Judicial Magistrate vide order dated 16.09.2016 has taken cognizance and drawn criminal proceeding against all the accused persons. The applicant had moved regular bail claiming juvenility, which was allowed vide order dated 19.10.2016 till the Board made functional and pending decision regarding determination of age of the applicant. Ultimately, the applicant was declared juvenile vide order dated 18.05.2022 passed by Juvenile Justice Board, Bulandshahar.

5. Learned counsel for the applicant has submitted that the applicant was declared juvenile vide order dated 18.05.2022 and at the time of commission of alleged offence, the applicant was 16 years 9 months and 7 days and meaning thereby the applicant was above 16 years but less than 18 years. He has further submitted that after declaring juvenile, the guardian of applicant had moved an application dated 26.08.2022 before learned Additional Chief Judicial Magistrate Khurja, Bulandshahar praying therein to separate the file of trial proceedings of the instant case and send its file before the court having jurisdiction to try the case against the applicant but the same was rejected vide impugned order dated 03.02.2023. He has further submitted that the order impugned is illegal and continuation of trial proceedings of the instant case against the applicant/delinquent juvenile any further will be in violation of clear mandate of law as given under Section 18 (3) of the Act, 2015. Leaned counsel for the applicant has drawn the attention of the Court towards the Annexure 11 of the affidavit filed in support of application wherein the Principal Magistrate vide letter dated 27.06.2022 requested the learned Additional Chief Judicial Magistrate to pass appropriate order for sending the matter to the Juvenile Justice Board, but instead of sending the file to the Juvenile Justice Board, learned Magistrate has passed the order impugned, hence, this application.

6. In support of his submission, learned counsel for the applicant has relied upon the judgment of Hon'ble Apex Court in the case of Barun Chandra Thakur vs. Master Bholu and another, 2022 SCC OnLine SC 870.

7. Per contra, learned Additional Government Advocate has vehemently opposed the submissions made by learned counsel for the applicant.

8. I have considered the rival submissions advanced by learned counsel for the parties.

9. Before proceeding to deal with the submissions advanced, it would be appropriate to refer the Sections 18 (3) and 19 of Juvenile Justice (Care and Protection of Children) Act, 2015.

"18 (3). Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences.

19. Powers of Children's Court.

(1) After the receipt of preliminary assessment from the Board under Section 15, the Childrens Court may decide that--

(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;

(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of section 18.

(2) The Childrens Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.

(3) The Childrens Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:

Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.

(4) The Childrens Court shall ensure that there is a periodic follow up report every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill-treatment to the child in any form.

(5) The reports under sub-section (4) shall be forwarded to the Childrens Court for record and follow up, as may be required."

10. As per terms of Section 18 (3) of the Act, 2015, the Magistrate has no power to retain the file after declaring the applicant-accused as juvenile and the trial of any accused/delinquent juvenile, who is assessed to be tried as an adult, can only be held before the Children's Court/ POCSO Court in terms of Section 18 (3) of the Act, 2015.

11. But in the present case, the accused-applicant was 16 years 9 months and 7 days at the time of commission of alleged offence, hence, the accused-applicant was declared juvenile vide order dated 18.05.2022 passed by Juvenile Justice Board. After declaring the accused-applicant as juvenile, the Principal Magistrate has rightly requested the learned Additional Chief Judicial Magistrate to pass appropriate order for sending the matter to the Juvenile Justice Board/Children's court, but the learned Additional Chief Judicial Magistrate without giving any heed, rejected the same observing that as the file of the instant case has been transferred to his court, therefore, he will continue to hold the trial proceeding.

12. Recently, the Hon'ble Apex Court in the case of Barun Chandra Thakur (supra) has observed as under:

"81. We are conscious of the fact that the power to make the preliminary assessment is vested in the Board and also the Children's Court under Sections 15 and 19 respectively. The Children's Court, on its own, upon a matter being referred to under Section 18(3), would still examine whether the child is to be tried as an adult or not, and if it would come to the conclusion that the child was not to be tried as an adult then it would itself conduct an inquiry as a Board and pass appropriate orders under Section 18. Thus, the power to carry out the preliminary assessment rests with the Board and the Children's Court. This Court cannot delve upon the exercise of preliminary assessment. This Court will only examine as to whether the preliminary assessment has been carried out as required under law or not. Even the High Court, exercising revisionary power under Section 102, would test the decision of the Board or the Children's Court with respect to its legality or propriety only. In the present case, the High Court has, after considering limited material on record, arrived at a conclusion that the matter required reconsideration and for which, it has remanded the matter to the Board with further directions to take additional evidence and also to afford adequate opportunity to the child before taking a fresh decision."

13. Perusal of letter of Principal Magistrate dated 27.06.2022 clearly states that after declaring the accused-applicant as juvenile, he has requested the learned Additional Chief Judicial Magistrate to pass appropriate order for sending the matter to the Juvenile Justice Board and the learned Magistrate ought to have complied with requisition request dated 27.06.2022 wherein it was asked to transfer the file of the instant case to the Juvenile Justice Board so that Board may transfer the said file to the Children's Court/POCSO Court having jurisdiction to try such case against the accused-applicant in terms of Section 18 (3) of the Act, 2015, but the learned Additional Chief Judicial Magistrate, instead of sending the file to the Juvenile Justice Board, has passed the order impugned.

14. In view of the facts and circumstances of the case and the law laid down as discussed above, the present application u/s 482 Cr.P.C. is allowed. The impugned order dated 03.02.2023 passed by learned ACJM, Khurja, District Bulandshahar is hereby set aside.

15. Consequently, the instant case pending before the learned Magistrate stands transferred to the Children's Court in view of Section 18 (3) of Juvenile Justice (Care & Protection of Children) Act, 2015. The Magistrate concerned is directed to send the file of the instant case to the Juvenile Justice Board/Children's Court having jurisdiction to try the case against the applicant in terms of Section 18 (3) of the Act, 2015.

Order Date :- 24.5.2023

Ajeet