Back
2017 Supreme(J&K) 826
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
ALOK ARADHE, J.
Bibi - Appellant
Versus
State of J&K and Ors. - Respondents
561-A No. 286 of 2016 and MP No. 01 of 2016
Decided On : 06-02-2017
Advocate Appeared:
For the Appellant :A.M. Malik, Advocate.
For the Respondents: Ravinder Gupta, A.A.G.
Procedural requirements under the Jammu and Kashmir Juvenile Justice Act, 1997 and the Act, 2013 must be followed, and the opportunity of cross-examination must be afforded to the concerned parties.
Headnote:
Juvenile Justice Act - Quashing of Order - Jammu and Kashmir Juvenile Justice Act, 1997, Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 - Section 561-A of the Code of Criminal Procedure, Section 435 of the Code of Criminal Procedure
Fact of the Case:
The petitioner, wife of the deceased, filed a writ petition seeking quashment of an order passed by the trial Court declaring respondents-3 and 4 as juveniles in a murder case. The order was passed under the provisions of the repealed Jammu and Kashmir Juvenile Justice Act, 1997.
Finding of the Court:
The court found that the impugned order was passed in violation of the provisions of the Act, 2013 and the rules framed thereunder. The procedural requirements laid down in the Rules, 2014 were not followed, and the petitioner was not given the opportunity of cross-examination.
Issues: Violation of procedural requirements under the Jammu and Kashmir Juvenile Justice Act, 1997 and the Act, 2013, lack of opportunity for cross-examination of the petitioner.
Ratio Decidendi: The impugned order was quashed as it was passed in violation of the procedural requirements laid down in the Rules, 2014, and the petitioner was not given the opportunity of cross-examination.
Final Decision: The impugned order was quashed, and the trial Court was directed to decide the application preferred by respondents-3 and 4 bearing in mind the mandate contained in Rules 74 and 75 of the Rules, 2014 and in accordance with law. The application was to be decided within a period of six weeks from the date of the judgment.
ALOK ARADHE, J.
1. With the consent of the parties, matter is taken up on board. In this writ petition under Section 561-A of the Code of Criminal Procedure read with Section 435 of the Code of Criminal Procedure, the petitioner seeks quashment of order dated 04-05-2016 passed by the trial Court. Facts giving rise to filing of the petition briefly stated are that the petitioner is wife of late Abdul Rashid, who was allegedly murdered by respondents-3 and 4. Pursuant to the aforesaid incident, the First Information Report, namely, FIR No. 56/2015, dated 06-07-2015 was registered under Sections 302/307/147/148/149/429 RPC, in Police Station, Kud, Tehsil Chenani, District Udhampur and thereafter charge sheet was presented before the Chief Judicial Magistrate, Udhampur on 11-10-2015. During the course of trial, respondents-3 and 4 moved an application on the ground that they are juvenile. The trial Court on the basis of birth certificates issued by SHO, Police Station, Miran Sahib, passed an order dated 04-05-2016, by which the application preferred by respondents-3 and 4 was allowed. They were declared as juvenile.
2. It is not in dispute that the application preferred by the petitioner has been decided under the provisions of Jammu and Kashmir Juvenile Justice Act, 1997 which has already been repealed by The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 (hereinafter for short the Act, 2013).
3. Learned counsel for the petitioner submitted that the impugned order has been passed in flagrant violation of the provisions of the Act, 2013 and the rules framed thereunder. It is further submitted that no opportunity of hearing was afforded to the petitioner before passing the impugned order.
4. Learned counsel for the respondents have not disputed the fact that the impugned order has been passed under the provisions of the Jammu and Kashmir Juvenile Justice Act, 1997, which has already been repealed by The Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013. It is further submitted by learned counsel for respondents-3 and 4 that respondents-3 and 4 had filed an application before the Magistrate and the factum of juvenility has already been ascertained by the Magistrate. It is further submitted that the order has been passed on the basis of certificates issued by the SHO and, therefore, no interference with the impugned order is called for.
5. I have considered the submissions made by the learned counsel for the parties and perused the record. In exercise of powers under Section 68 of the Act, 2013, the Rules have been framed by the State Government which are known as the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014 (hereinafter for short the Rules, 2014). The relevant extract of Rule 74(3) which deals with Determination of Age of juvenile and Rule 75 which deals with Declaration of age by the Court or Board or the Committee, reads as under:
"74. Determination of Age
xx xx xx xx xx xx x xx xx xx xx xx xx x
(3) The Board or the Committee, as the case may be, shall, as far as possible, decide the juvenility or otherwise, on the basis of physical appearance or documents available, if any. Where an inquiry is instituted by Board or the Committee for determination of age, such inquiry shall be conducted on the basis of following evidence:-
(i) the birth certificate issued by a Corporation or a Municipal Committee or any other notified authority; or
(ii) the matriculation or equivalent certificate, (iii) in absence of the certificates mentioned in Sub-clauses (i) and (ii) or in case of any contradiction arising there from, the authority deciding the age issue may refer the matter to a duly constituted Medical Board, which shall record its findings and submit to the Juvenile Justice Board."
"75. Declaration of age by the Court or Board or the Committee (1) The Court or the Board or the Committee, as the case may be, shall declare the age after examin
