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2019 Supreme(Kar) 1356
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.A. PATIL, J.
Gangaraju @ Raju S/o Krishnappa
Versus
State of Karnataka By Hebbal Police Station Represented by SPP – Respondent
Criminal Revision Petition No.1335 OF 2019
Decided On : 25-11-2019
For the Petitioner:Sri Vikas.M., Advocate
For the Respondent: Sri M Divakar Maddur, HCGP
Headnote:
Indian Penal Code,1860 - Sections 366 and 376 – Criminal Procedure Code,1973 - Section 313 - U.P. Children Act, 1951 - Section 2(4) - Juvenile Justice (Care and Protection of Children) Act, 2000 - Section 7(2) - Quash – Punishment - Case of prosecution in brief is that mother of victim filed a missing complaint alleging that accused has eloped with his minor daughter- On basis of said complaint investigation was conducted and accused and victim were found at Andhra Pradesh- They have been brought back and after recording statement of victim and after completion of investigation charge sheet has been filed for offence punishable - Thereafter accused filed an application contending that he was aged about as on date of alleged incident –Held, Court time and again and it has been clearly explained that raising age of ‘juvenile’ would apply retrospectively- It is also clear that plea of juvenility can be raised at any time even after relevant judgment/order has attained finality and even if no such plea had been raised earlier- Furthermore it commission of offence and not date of taking cognizance or of framing of charges or of conviction that is to be taken into consideration Court it indicates that Court below has taken into consideration age declaration made in bail application and has come to conclusion that he was major- It has also taken into consideration driving licence and admission made mother of victim girl without properly looking into records or without determination of age by adopting test by competent authority or Board- In that light court of considered opinion that method adopted by Court below is not in accordance with law laid down by Hon’ble Apex Court petitioner-accused has made out a case interfere with order of trial Court- Hence petition is allowed and order passed by Child Friendly Court Urban District set aside and matter is remitted to Court below to consider preposition of law as laid down by Hon’ble Apex Court and also provisions of law contained and other subsequent amendments and thereafter pass appropriate orders for determination of age of petitioner- If after determination Court below comes to conclusion that age of petitioner-accused is less than of incident then pass appropriate orders directing him to appear before Juvenile Court - Petition disposal
ORDER :
This petition has been filed by the petitioner-applicant challenging the order passed by the Child Friendly Court, Bengaluru Urban District in Spl.C.C.No.161/2015 dated 18.9.2019, whereunder the application filed under Section 7(2) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as “JJ Act” for short) came to be dismissed.
2. The case of the prosecution in brief is that the mother of the victim filed a missing complaint alleging that the accused has eloped with his minor daughter. On the basis of the said complaint, investigation was conducted and accused and victim were found at Andhra Pradesh. They have been brought back and after recording the statement of the victim and after completion of investigation, charge sheet has been filed for the offence punishable under Sections 366 and 376 of IPC and also under Section 4 of the POCSO Act, 2012. Thereafter, accused filed an application under Section 7(2) of the Act contending that he was aged about 15 years 9 months 19 days as on the date of the alleged incident. He has also produced xerox copy of the transfer certificate issued by Z.P. Boys High School, Gorantla, Andhra Pradesh wherein the date of birth of the accused-petitioner is mentioned as 4.3.1999 and it is submitted that in view of the said document, accused is a juvenile, as such, the case may be transferred to Juvenile Justice Board. The learned Public Prosecutor did not file any objection to the said application. After hearing the parties to the proceedings, the learned Sessions Judge dismissed the application. Challenging the legality and correctness of the said order, the accused-petitioner is before this Court.
3. It is the contention of the learned counsel for the petitioner-accused that along with the application filed under Section 7(2) of the JJ Act, xerox copy of the transfer certificate issued by Z.P.Boys High School, Gorantla, Andhra Pradesh has been produced to substantiate the contention of the petitioner that his date of birth is 4.3.1999 and as on the date of the alleged incident he was less than 16 years, which came to be dismissed. Further, petitioner filed one more application before the same Court by producing all the original records, seeking to pass appropriate orders by following the procedure as contemplated under Section 7A of the Act and thereafter, to transfer the case to Juvenile Justice Board for the purpose of trial. But the Court, by order dated 31.10.2019, rejected the said application holding that it cannot review its own order. Hence, petitioner has prayed to allow the application and to set aside the impugned order.
4. Per-contra, learned High Court Government Pleader vehemently argued that the records indicate that prosecution has examined almost all the witnesses and the case has now been posted for recording the statement of accused under Section 313 of Cr.P.C. At this belated stage, the said document has been produced contending that petitioner was minor and juvenile as on the date of alleged incident. It is his further submission that the accused himself has made a declaration that as on the date of alleged incident he was a major and has also produced the driving licence, which shows that he is born on 4.3.1993. It is his further contention that petitioner has been appointed as Driver in Vijay Hospital, Hyderabad and in this regard a letter issued by Dr.D.Ashok Reddy of the said hospital is produced to show that he has worked in the said hospital. It is his further submission that P.W.4, the mother of the victim girl has stated that accused was driver in Uber, Passenger Vehicle Company. All these materials clearly show that as on the date of the alleged incident, he was major. As such, the trial Court after considering all the material placed on record, has come to a right conclusion and has rightly dismissed the application. On these grounds, he prayed to dismiss the petition.
5. I have carefully and cautiously gone through the sub
