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2012 Supreme(HP) 416
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Kuldip Singh, J.
Naushad Ali @ Nishu - Petitioner.
Versus
State of Himachal Pradesh through District Magistrate, Mandi - Respondents.
Cr. MMO No. 134 of 2012
Decided on : 8.10.2012
Advocate Appeared:
For the Petitioner:Mr. T.S.Chauhan, Advocate.
For the Respondents: Ms. Ruma Kaushik, Addl. A.G.
The central legal point established in the judgment is the requirement for the court to conduct a thorough inquiry and consider necessary evidence when a claim of juvenility is raised, emphasizing the importance of protecting the interests of the petitioner.
Headnote:
Juvenile Justice Act - Juvenility - 2000 Act, Section 2(k), Section 7A, Rule 11, Rule 12 - The court allowed the petition and set aside the order rejecting the claim of juvenility, declaring the petitioner to be a juvenile on the date of the offense, and directing proceedings in accordance with the law.
Fact of the Case:
The petitioner, accused of kidnapping and marrying a minor, claimed juvenility at the time of the offense. The Magistrate rejected the claim and remanded the petitioner to judicial custody.
Finding of the Court:
The court found that the Magistrate did not adequately consider the evidence supporting the petitioner's claim of juvenility and set aside the order, declaring the petitioner to be a juvenile on the date of the offense.
Issues: The main issue was the determination of the petitioner's juvenility at the time of the offense, and whether the Magistrate adequately considered the evidence supporting the claim.
Ratio Decidendi: The court emphasized that when a claim of juvenility is raised, the court must make an inquiry and consider necessary evidence to determine the age of the person. The court also highlighted the importance of protecting the interests of the petitioner when considering the evidence.
Final Decision: The petition was allowed, the order rejecting the claim of juvenility was set aside, and the petitioner was declared to be a juvenile on the date of the offense, with directions for proceedings in accordance with the law.
Kuldip Singh, Judge
1. This petition under Section 482 Cr.P.C. has been filed for quashing order dated 13.8.2012 passed by learned Judicial Magistrate 1st Class, (1), Sundernagar in bail application No. 15-XXII/2012 State of H.P. vs. Naushad Ali alias Nishu for handing over the custody of the petitioner to his parents or to Juvenile Justice Board and a direction to investigate the matter in accordance with the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘Act’).
2. The facts in brief as per petitioner are that petitioner was born in village Arki, District Solan on 11.8.1994. The petitioner studied in Government Elementary School, Raj Nagar, Nangal upto 5th class. On 3.3.2012 FIR No. 27 under Sections 363, 366 IPC was registered against the petitioner at Police Station, Sundernagar and subsequently Section 376 IPC was also added. It has been alleged that petitioner has kidnapped minor daughter of Shashi Mohamed. The petitioner and daughter of Shashi Mohamed subsequently got married. The petitioner and prosecutrix filed petition No. Cr.M.M. No. 7630 of 2012 under Section 482 Cr.P.C. before the Punjab and Haryana High Court for protection of life and liberty which was subsequently dismissed as withdrawn as they no more required police protection.
3. The petitioner was arrested on 8.8.2012 from Nangal. The petitioner and prosecutrix in the case filed by them has shown their age as 21 years. It has been stated that at the time of arrest, the investigating officer was told by the petitioner that petitioner and prosecutrix were minors, but the investigating officer arrested the petitioner like the ordinary accused without taking into consideration the Act.
4. On 13.8.2012 the petitioner was produced before the learned Judicial Magistrate 1st Class, Sundernagar by respondent No.3 with the application for remand. On behalf of the petitioner, a submission was made before the learned Magistrate that the petitioner may be sent to Juvenile home as his date of birth is 11.8.1994 as the offence was allegedly committed by him on 3.3.2012. At the time of commission of alleged offence, the petitioner was less than 18 years. The petitioner attained 18 years age on 11.8.2012. It has been stated that the certificate of age of petitioner was also tendered before the learned Magistrate on 13.8.2012. The learned Magistrate instead of sending the petitioner to Juvenile Board for conducting further inquiry regarding the age of the petitioner remanded the petitioner to judicial custody.
5. The order dated 13.8.2012 has been assailed in the petition on the grounds that the judicial remand of the petitioner by the Magistrate is in violation of the Act, the impugned order is wrong, illegal and without jurisdiction. The petitioner and his parents informed the investigating officer that petitioner was minor but investigation in the case has not been conducted taking into consideration the Act. The Section 3 of the Act governs the factum of the age of the petitioner irrespective of the fact now, the petitioner has attained 18 years of age on 11.8.2012. The Magistrate has not conducted inquiry in terms of Section 7A of the Act.
6. The reply has been filed. It has been stated that the petitioner was arrested on 8.8.2012. The petitioner during investigation disclosed his age 21 years. The petitioner during medical examination disclosed his age 21 years before the Medical Officer. In the Nikah Nama the petitioner has mentioned his age 21 years. However, in the birth certificate dated 1.9.2012 issued by the Registrar, Births and Deaths, Nagar Panchayat, Arki, the date of birth of the petitioner has been written 11.8.1994. The investigating officer got verified the certificate from the Registrar and found it to be correct as per the original record. The petitioner as well as his parents did not produce any document regarding the date of birth or age proof of the petitioner.
7. It has come in the investigation that petitioner got
