Jharkhand High Court
Hamja Arif vs The State Of Jharkhand on 9 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No.691 of 2020
1. Hamja Arif
2. Hafiza Arif @ Hifza Arif ... ... Petitioners
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioners : Mr. Nilesh Kumar, Adv.
Mr. Amit Kr. Sinha, Adv.
For the State : Mr. Rajendra Ram Ravi Das, A.P.P.
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The matter was taken up through Video Conferencing. Learned counsel
for the parties had no objections with it and submitted that the audio and
video qualities are good.
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08/09.09.2021: The instant revision application has been filed against the order
of the appellate court dated 20.07.2020 passed by the learned Additional
Judicial Commissioner-IV-cum-Special Judge POCSO, Ranchi in
Criminal Appeal No.288 of 2018 arising out of G.R. No.772 of 2016 being
Dhurwa (T) P.S. Case No.45 of 2016, E. No.145 of 2018 registered under
Section 302/34 of the Indian Penal Code. The case is now pending in the
court of the learned Principal Magistrate, Juvenile Justice Board, Ranchi.
It has been submitted by the learned counsel for the petitioner
that the FIR has been lodged against unknown and the dead body of the
deceased has been found in the hospital. After investigation, the charge-
sheet has been submitted against the present revisionists and their parents.
The plea of the juvenility has been taken with regard to the
present revisionists and vide order dated 19.03.2016 and 28.07.2016 the
J.J. Board, Dumerdaga, Ranchi, age of Hifza Arif @ Hafiza Arif has been
assessed as 11 years 09 months and 20 days (less than 12 years) and Hamja
Arif has been assessed as 15 years 11 months and 18 days (less than 16
years) and both the revisionists had been declared juvenile. Although, the
offence was heinous in nature but as per the command of the J.J. Act, the
matter has been inquired by the J.J. Board and vide order dated 06.07.2018
the revisionists have been acquitted from the charge.
It appears that being aggrieved, an appeal has been filed against
the order of acquittal passed by the Board and numbered as Criminal
Appeal No.288 of 2018 and vide impugned order dated 20.07.2020, the
matter has been remitted back to the Board after setting aside the order of
acquittal.
The learned counsel for the revisionists has drawn the attention
of the Court towards the Section 101 of the J.J. Act:-
"Appeals-(1)...........
(2)..............
(3) No appeal shall lie from,-(a) any order of acquittal made by the
Board in respect of a child alleged to have committed an offence other
than the heinous offence by a child who has completed or is above the
age of sixteen years; or............"
Referring to above section, it has been submitted that no appeal
is maintainable and on that ground the appellate order has been challenged
in the present case.
Counsel for the State has supported the order of appellate court
but could not dispute the legal position.
Having heard both the parties and from perusal of the Lower
Court Records, it appears that the revisionists are below 16 years. In view
of age group, the order has to be passed by the J.J. Board under Section
18 of the J.J. Act, if found in conflict with law. The court after due enquiry
has found charges not proved, and as such, the enquiry has been concluded
in favour of the juvenile.
As per the mandate of the J.J. Act no appeal lies, but the revision
lies before this Court under Section 102 of the J.J. Act.
From perusal of the Lower Court Records and pleading of the
parties, it appears that Hamja Arif has remained in custody for nine
months and Hafiza Arif @ Hifza Arif has been remained in custody for
about four months and thereafter the juvenile namely Hamja Arif in Cr.
Revision No.1384 of 2016 vide order dated 18.11.2016 has been granted
bail and Hifza Arif @ Hafiza Arif has been released on bail vide order
dated 14.06.2016 in Cr. Revision No.646 of 2016.
From perusal of the order of the J.J. Board and the appellate
order, it appears that the case is on circumstantial evidence. The Board
after going through circumstantial evidence has recorded the findings that
circumstances do not proof the involvement of the juvenile in the crime.
There is lacunae in the prosecution case and considering that lacunae,
benefits has been extended in favour of the juvenile. The appellate court
has re-appreciated the entire evidence and has recorded the finding that
the court below has not properly appreciated the circumstantial evidence
and referring to sections 25 read with Section 27 and Section 8 of the
Indian Evidence Act, has recorded the finding that it requires re-trial and
the matter has been remitted back.
Further, from perusal of both the judgments, it appears that two
views possible and one view has been taken in favour of the juvenile by
the Board. I don't find any reason to differ with the finding of the J.J.
Board and especially considering the mandate of the J.J. Act that a juvenile
cannot be punished rather a correctional method has to be applied. Further,
finding of guilt cannot be taken on record.
Thus, considering the entire scheme of the J.J. Act and material
available on record, I don't find any reason to differ with the finding
recorded by the J.J. Board. Further, the order of the appellate court being
without jurisdiction is, hereby, set aside.
As a result, the order dated 20.07.2020 passed by the learned
Additional Judicial Commissioner-IV-cum-Special Judge POCSO,
Ranchi in Criminal Appeal No.288 of 2018 arising out of G.R. No.772 of
2016 being Dhurwa (T) P.S. Case No.45 of 2016, E. No.145 of 2018 is,
hereby, set aside.
Accordingly, the instant criminal revision being Criminal
Revision No.691 of 2020 stands allowed.
(Rajesh Kumar, J.)
Amar/-
