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2017 Supreme(Gau) 1066
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Hitesh Kumar Sarma, J.
Fakrul Islam, Son of Late Abdul Hye – Petitioner
Versus
The State of Assam and Ors. – Respondents
Criminal Revision Petition No. 451 of 2017
Decided On : 20-12-2017
For the Petitioner: Mr. HRA Choudhury, Mr. I.A. Hazarika, Mr. A. Ahmed
For the Respondent: Mr. N.J. Dutta
Headnote:
Constitution of India – Article 21 – Indian Penal Code, 1860 – Section 302 – Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 20 – Criminal Procedure Code, 1973 – Section 313, 401 and 482 – Evidence Act – Section 35 – Suit – Claim of juvenility – Learned counsel petitioner has submitted that neither in trial Court nor in High Court, in appeal plea of juvenility of the present petitioner was taken appears from record produced before this Court that an application was made before learned Additional Sessions Judge, No. 1, Nagaon, claiming juvenility of present petitioner – Petition before learned Additional Sessions Judge claiming juvenility of present petitioner was filed by his mother Mustt. Hajera Khatun – According to her present petitioner was born and he studied Class-V in at relevant point of time – Held, Suit is filed on ground that plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was minor. A court of law for purpose of determining age of a party to having regard to provisions of Section 35 of Evidence Act will have to apply same standard – No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where victim or prosecutrix although might have consented with accused basis of entries made in register maintained by the school, a judgment of conviction is recorded accused would be deprived of his constitutional right – Criminal revision petition stands disposed.
I have heard Mr. A Ahmed, learned counsel representing the petitioner, and Mr. N.J. Dutta, learned Additional Public Prosecutor, representing the State respondent No. 1.
2. After hearing the learned counsel for the parties on perusal of the materials on record, I propose to dispose of this criminal revision petition at the motion stage itself, by this judgment and order.
3. This is a criminal revision petition, filed under Section 401, read with Section 482 of the Cr.P.C., for setting aside the order, dated 18-07-2017, passed by the learned Additional Sessions Judge, No. 1, Nagaon, in Misc. (J) Crl. Case No. 01(N)/2017, rejecting the claim of the juvenility of the present petitioner, Fakrul Islam.
4. The learned Additional Public Prosecutor, during the course of hearing has fairly agreed that there is ground for holding a fresh enquiry in respect of the claim of juvenility by the present petitioner in view of the explanation to the provisions of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short, ‘2000 Act’) as well as in view of decisions rendered by the Hon’ble Supreme Court and our own Hon’ble High Court, which are referred to hereinbelow.
5. The fact leading to the case is that an FIR was lodged on 21-04-2000, alleging commission of murder of the deceased by the accused persons. The accused persons, including the present petitioner, were named in the FIR.
6. The learned Additional Sessions Judge, No. 1, Nagaon, vide the judgment and order, dated 29-04-2000, passed in Sessions Case No. 161 (N)/2004, convicted and sentenced the accused persons including the present petitioner to undergo life imprisonment for commission of offence under Section 302 of the IPC and also to pay a fine of Rs. 3000/- with default clause. The criminal appeal preferred before this High Court, against the aforesaid judgment, vide Criminal Appeal No. 162/2013, was dismissed.
7. Although there is no record before this Court as to whether the present accused-petitioner/convict approached the Hon’ble Supreme Court, or not, yet it has come out from the submission of the learned counsel for the petitioner that SLP was moved before the Hon’ble Supreme Court against the judgment and order, dated 21-05-2015, above in the aforesaid appeal was dismissed by the Hon’ble Supreme Court in the year 2016.
8. The learned counsel for the petitioner has submitted that neither in the trial Court, nor in the High Court, in appeal, the plea of juvenility of the present petitioner was taken. It appears from the record produced before this Court that on 03-06-2017, an application was made before the learned Additional Sessions Judge, No. 1, Nagaon, claiming juvenility of the present petitioner. The petition before the learned Additional Sessions Judge, No. 1, Nagaon, claiming juvenility of the present petitioner was filed by his mother Mustt. Hajera Khatun. According to her, the present petitioner was born on 01-01-1984 and he studied upto Class-V in Pachim Gayangaon Balika Muktab at the relevant point of time. The son of the aforesaid petitioner, Hajera Khatun, present petitioner was aged about 16 years, 3 months and 20 days and to substantiate such claim, she produced a school certificate, issued by the Headmaster of the aforesaid school. The school certificate produced, made it appear that the present petitioner was admitted in the said school on 10-02-1990. The aforesaid school was provincialised in the year 1987.
9. The learned Additional Sessions Judge, No. 1, Nagaon, examined the Headmaster of the school, who issued the certificate and rejected the plea of juvenility of the present petitioner on the ground that the basis of recording the age of the present petitioner in the school register is not mentioned either in the school register or in the certificate as well as the fact that the Headmaster did not know the parents of the present petitioner and his exact date of birth. Further ground on which the prayer was rejecte
