Madhya Pradesh High Court
Omkar Alias Onkar vs The State Of Madhya Pradesh on 9 January, 2025
Author: Vishal Mishra
Bench: Vishal Mishra, Avanindra Kumar Singh
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1
CRA No.8508 of 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPU R
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 09TH OF JANUARY, 2025
CRIMINAL APPEAL No. 8508 of 2023
OMKAR ALIAS ONKAR AND ANOTHER
Versus
THE STATE OF MADHYA PRADESH
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Appearance :
Shri Rohan Singh - Advocate for the appellants.
Shri A.S. Baghel - Government Advocate for the respondent/State.
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JUDGMENT
Per Vishal Mishra, J.
This matter is listed today for consideration of the inquiry report
dated 20.12.2024 submitted by the Inquiry Officer/Additional Sessions
Judge, Amarwada District Chhindwara (M.P.) in pursuance to the order
passed by this Court dated 22.11.2024.
2. This appeal has been preferred against the judgment of conviction
and order of sentence dated 19.05.2023 passed by the Additional
Sessions Judge, Amarwada District Chhindwara (M.P.) in Sessions Trial
No.34 of 2019 whereby both the appellants namely (1) Omkar @ Onkar
and (2) Shivkumar @ Chhotu were convicted under Section 302 read
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with 34 of IPC and sentenced to undergo R.I. for Life and to pay fine of
Rs.5000/- each and in default, to suffer R.I. for 1 year.
3. The appeal is pending consideration before this Court on behalf of
both the accused-appellants.
4. The application being I.A. No.3702 of 2024 at the instance of
appellant No.1-Omkar alias Onkar seeking suspension of sentence and
bail on the ground that he was juvenile on the date of commission of the
offence. Therefore, the learned trial Court was not having jurisdiction to
conduct the trial on behalf of the appellant.
5. Counsel for the appellant has placed reliance on the judgment
passed by the Hon'ble Supreme Court in the case of Ashwani Kumar
Saxena vs State of M.P. reported in AIR 2013 SC 553.
6. This Court vide order dated 22.11.2024 has allowed the application
of appellant No.1-Omkar alias Onkar for suspension of sentence and bail
with a further direction to the trial Court to conduct an enquiry into the
matter with respect of juvenility of the accused at the time of incident.
7. It is settled legal proposition of law that the factum of juvenility
can be raised at any point of time and inquired into by the competent
authority at any point of time even at the appellate stage. The Hon'ble
Supreme Court in the case of Anil Agarwal and another vs State of West
Bengal reported in (2011) 2 Scale 429 has considered the claim of
juvenility made at a belated stage.
8. In the case of Ashwani Kumar Saxena (supra) wherein the decision
of Anil Agrawal (supra) was relied on, the Hon'ble Supreme Court has
held that in case the accused is found to be juvenile on the date of
commission of the offence then the Sessions Court has no power to deal
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with the trial of a juvenile. The trial has to be conducted by the Juvenile
Justice Board for awarding punishment under the Act. The Court has
observed as follows :
23. In Anil Agarwal and Another v. State of West Bengal [(2011) 2
SCALE 429], this Court was examining the claim of juvenility
made at a belated stage stating that the appellants were minors at
the time of the alleged offence and hence should not be tried along
with the adult co-accused. The trial court dismissed the
appellant's application as not maintainable as it had been filed at
a belated stage. The High Court, in revision, while holding that
the application had been made belatedly, granted liberty to
appellants to raise their plea of juvenility and to establish the
same before the Sessions Judge at the stage of the examination
under section 313 Cr.P.C.
24. Reversing the finding recorded by the High Court, this Court
took the view that Section 7A of the Act, as it now reads, gives
right to any accused to raise the question of juvenility at any point
of time and if such an issue is raised, the Court is under an
obligation to make an inquiry and deal with that claim. The court
held Section 7A has to be read along with Rule 12 of the 2007
Rules. This Court, therefore, set aside the order of the High Court
and directed the trial court to first examine the question of
juvenility and in the event, the trial court comes to a finding that
the appellants were minors at the time of commission of the
offence, they be produced before the J.J. Board for considering
their cases in accordance with the provisions of the 2000 Act.
..
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45. We are of the view that admission register in the school in
which the candidate first attended is a relevant piece of evidence
of the date of birth. The reasoning that the parents could have
entered a wrong date of birth in the admission register hence not a
correct date of birth is equal to thinking that parents would do so
in anticipation that child would commit a crime in future and, in
that situation, they could successfully raise a claim of juvenility.
...
47. We notice that the accused is also involved in few other
criminal cases as well. Since we have found that the appellant was
a juvenile on the date of the incident, in this case, we are inclined
to set aside the sentence awarded in Sessions Case No.28/2009 by
Sessions Court and direct the High Court to place the records
before J.J. Board for awarding appropriate sentence in
accordance with the provisions of Act, 2000, and if the appellant
has already undergone the maximum sentence of three years as
prescribed in the Act, needless to say he has to be let free,
provided he is not in custody in any other criminal case. We are
informed that the appellant is involved in few other criminal cases
as well, those cases will proceed in accordance with law.
9. Following the aforesaid judgment, this Court, vide order dated
22.11.2024 while suspending the custodial sentence of appellant No.1-
Omkar alias Onkar, directed the trial Court to conduct an enquiry with
respect to the factum of juvenility of the accused on the date of
commission of the offence.
10. The procedure is required to be followed while examining the
factum of juvenility. In the present case, the date of offence is 08th/09th
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January 2019, therefore, the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2015 will be applicable.
11. However, the judgment in the case of Ashwani Kumar Saxena
(supra) was passed by the Hon'ble Supreme Court considering the
provisions of Act of 2000. The said Act of 2000 has been repealed and
new Act i.e. Juvenile Justice (Care and Protection of Children) Act, 2015
has been enacted wherein almost similar provisions are contained.
Section 94 of the Act of 2015 reads as follows :
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
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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.
12. In view of the settled legal proposition in the case of Ashwani
Kumar Saxena (supra), the learned trial Court in compliance of the order
passed by this Court on 22.11.2024 has inquired into the factum of
juvenility of the accused-appellant No.1- Omkar alilas Onkar and
submitted the report dated 20.12.2024. The findings recorded by the
Inquiry Officer/Additional Sessions Judge, Amarwada District
Chhindwara (M.P.) are as under :
24. जांच में आवेदक/अभियुक्त की आयु के संबंध में प्रस्तुत दस्तावेजो पर विचार
किया जावे तो कक्षा छटवी की अंकसूची प्रदर्श ए-1. शासकीय माध्यमिक शाला
ओझलढाना द्वारा जारी प्रमाण-पत्र प्रदर्श ए-2, कक्षा छटवीं के दाखिल खारिज
रजिस्टर की प्रविष्टि कमाक-791 प्रदर्श ए-3. आधार कार्ड प्रदर्श ए-4, प्राथमिक
शाला द्वारा जारी स्थानांतरण प्रमाण-पत्र प्रदर्श ए-5 तथा प्राथमिक शाला के
दाखिल खारिज रजिस्टर की सत्यापित प्रति प्रदर्श ए-6सी में आवेदक/अभियुक्त
ओमकार पिता रगलाल धुर्वे की जन्मतारीख 16-04-2002 समान रूप से लेख है।
25. जे0जे0 एक्ट 2015 के उक्त प्रावधानों तथा उपरोक्त संपूर्ण जांच के आधार पर
इस न्यायालय का यह मत है कि आवेदक/अभियुक्त ओमकार की जन्मतारीख
16-04-2002 होते हुये यह घटना दिनाक 08/09-01-2019 को 16 साल 08 माह 2
3 दिन का होकर 18 वर्ष से कम आयु का जुविनाईल / किशोर रहा है।
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13. After conducting detailed enquiry, the Inquiry Officer/Additional
Sessions Judge, Amarwada District Chhindwara (M.P.) has held that on
the date of the incident i.e. 08th/09th January 2019, age of accused-
appellant No.1-Omkar alias Onkar was 16 years, 8 months and 23 days as
his date of birth was recorded as 16.04.2002. The report of the inquiry
officer is placed on record along with covering memo dated 20.12.2024.
14. Once the factum of juvenility of the accused-appellant No.1 is
ascertained and it is found that he was juvenile on the date of commission
of the offence, learned Sessions Court was not having any jurisdiction to
deal with the trial of a juvenile. Accordingly, the judgment dated
19.05.2023 passed by the Additional Sessions Judge, Amarwada District
Chhindwara qua appellant No.1 Omkar alias Onkar is unsustainable and
is hereby set aside.
15. It is pointed out that the accused-appellant No.1 has already
undergone custody period of more than 5 years as he remained in custody
from his date of arrest i.e. 12.01.2019 to 22.11.2024.
16. The record of the case be placed before the Juvenile Justice Board
for awarding appropriate sentence in accordance with provisions of the
Act of 2015.
17. In the present case, as we have already observed that the accused-
appellant No.1 has already undergone custody period of more than 5
years, therefore, he is not required to be taken into custody. Insofar as
criminal antecedent is concerned, there are no records produced before
the Court to ascertain whether any other criminal case is registered
against him or not. Learned Juvenile Justice Board to ascertain the
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aforesaid aspect and pass appropriate orders in terms of the relevant
provisions of the Act of 2015.
18. As far as the present case qua appellant No.1 namely Omkar alias
Onkar is concerned, the Juvenile Justice Board is directed to consider the
record as well as criminal antecedents and pass an order within a period
of 30 days from the date of receipt of certified copy of this order. Till the
order passed by the Juvenile Justice Board, the sentence suspended by
this Court vide order dated 22.11.2024 is extended for a period of 30 days
or till the order is passed by the Juvenile Justice Board.
19. The appeal stands allowed and disposed of so far as it relates to
appellant No.1- Omkar alias Onkar. The appeal will continue for
appellant No.2- Shivkumar @ Chhotu.
20. A copy of this judgment along with the record of the trial Court
be transmitted to the concerning Juvenile Justice Board forthwith, with a
direction to return the same after passing appropriate orders by the Board.
(VISHAL MISHRA) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
VV
