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2012 Supreme(Cal) 548
IN THE HIGH COURT OF CALCUTTA
KANCHAN CHAKRABORTY, J.
In Re: Raj Kumar Mondal @ Bagan @ Chandu Mondal – Appellant
Vs.
C.R.A. No. 102 of 2010
Decided On: 27.06.2012
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Debabrata Acharya, Sital Samanta and Prabir Adhya
For Respondents/Defendant: Angshuman Chakraborty for the State
A juvenile delinquent can raise a claim of juvenility for the first time in an appeal, and the court is required to determine the age of the accused in accordance with the Juvenile Justice (Care and Protection of Children) Act, 2000.
Headnote:
JUVENILE JUSTICE ACT - AGE DETERMINATION - SECTION 7A, 49 - COURT'S OVERSIGHT IN DETERMINING AGE - APPELLANT'S CLAIM OF JUVENILITY - REMITTED BACK FOR AGE DETERMINATION.
Fact of the Case:
The appellant challenged his conviction under Section 376/511 of the IPC, arguing that he was a juvenile at the time of the offense and should have been treated under the Juvenile Justice (Care and Protection of Children) Act, 2000.
Finding of the Court:
The court found that the appellant's claim of juvenility was supported by evidence in the FIR and his examination under Section 313 of the CrPC. The trial court had overlooked these pieces of evidence and failed to determine the appellant's age as required by law.
Issues: 1. Whether the appellant was a juvenile at the time of the offense. 2. Whether the trial court erred in not determining the appellant's age in accordance with the Juvenile Justice Act.
Ratio Decidendi: The court held that the appellant was entitled to the protection of the Juvenile Justice Act as he was a juvenile at the time of the offense. The court relied on Sections 7A and 49 of the Act, which provide for the determination of age and the procedure to be followed when a claim of juvenility is raised.
Final Decision: The court allowed the appeal, set aside the impugned judgment, and remitted the matter back to the trial court for determining the appellant's juvenility in accordance with the law. The trial court was directed to proceed with the case based on the result of the inquiry.
Kanchan Chakraborty, J.
1. The challenge in this appeal is to the judgment and conviction dated 22.12.2009 and 23.12.2009 respectively thereby convicting the appellant Raj Kr. Mondal under section 376/511 of the IPC and sentencing him to suffer RI for five years and to pay fine of Rs. 5,000/-. The appeal has been preferred challenging the judgment above on many fold grounds and one of the main ground is that the learned Court failed to consider that on the date of occurrence, the appellant was below the age to attain the majority in terms of Juvenile Justice (Care and Protection of Children) Act, 2000 (As amended).
2. Since this point is raised seriously by Mr. Acharya, learned Counsel appearing for the appellant and conceded by Mr. Chakraborty, learned Counsel appearing on behalf of the State of West Bengal, this Court thinks fit and proper to take up the matter first of all without entering into the merit of the judgment.
3. Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 is set out below:-
[7A. Procedure to be followed when claim of juvenility is raised before any Court.--(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 recognised 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 rule 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].
4. Section 49 of the said Act is also set out below:
49. Presumption and determination of age.--(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be true age of that person.
5. The provisions above made it explicit that when a question of juvenility of an accused is raised, Court is to be act according to the Law to ascertain the truthfulness of the claim of the accused and also to ascertain his actual age. The Act also provides procedures to be followed in doing so.
6. The instant case was set in motion by one FIR which was marked Ext. 1.A bare reading of the Ext. 1 leaves no room of doubt that the defacto complainant herself stated in the FIR that the age of the appellant/accused is 17 years at the relevant point of time. The accused/appellant was examined under section 313 of the Cr. PC by the learned Trial Court on 30.6.2009. The learned Trial Court recorded his age as 18 years on that date.
7. The incident alleged had taken place about 2 years prior to that examination of the accused/appellant under section 313 of the Cr. PC. This two importa
