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2020 Supreme(All) 931
IN THE HIGH COURT OF ALLAHABAD
DINESH PATHAK, J.
Rajesh Kumar – Appellant
Versus
State of U.P. and Another – Respondents
Criminal Revision No. 98 of 2020
Decided On : 15-10-2020
Advocate Appeared:
For the Appellants : Akhilesh Srivastava, Saksham Srivastava.
For the Respondent: Satendra Kumar Upadhyay.
Point of law: Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised.
Headnote:
J.J. Rules, 2007 – Rule 12 – Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 7 – Penal Code, 1860 – Sections 393, 302 – Loot – Juvenile – Instant criminal revision under Section 397/401 Cr.P.C. has been preferred against order passed by Additional Sessions Judge/Fast Track Court, Court No. 2, Aligarh in Sessions Trial arising out of Case Crime under Sections 393, 302 IPC, Police Station-Akrabad, District-Aligargh, whereby application filed by revisionist, claiming himself to be a juvenile at the time of incident, has been rejected
Finding of the court:
Under the newly inserted Section 7-A to the J.J. Act, 2000, it is made obligatory to the court that, after enquiry, if it finds a person to be juvenile on the date of commission of offence, it shall refer the matter to the Juvenile Justice Board for passing appropriate orders as per the provisions of law. – Provisions as contained in Section 7-A read with Rule 12 of J.J. Rules, 2007, clearly reveals that after enquiry, in case the person is considered as juvenile he should be given benefit of the Act. – Counsel for the opposite party no. 2 has not made any comment qua the enquiry conducted by the Court below in determining the age of the accused-revisionist. – It appears that respondent no. 2/first informant is satisfied with respect to the date of birth and age of the accused as determined by the Court below. – In view of the settled legal proposition and the discussions made above, present revisionist is entitled to benefit of J.J. Act 2000, inasmuch as, on the date of occurrence i.e. 4.5.2012, he was below 18 years of age. – The trial Court, after discussing the documents and statements made by the witnesses, came to the conclusion that the accused/revisionist was below the age of 18 years on the date of occurrence. – Once the Court below has completed its enquiry after discussing the relevant documents and statements of the witnesses that the revisionist/accused is less than 18 years of age, it has no option but to refer the matter to the Board, for passing appropriate orders, as provided in Section 7-A of J.J. Act, 2000. – Juvenility of the present revisionist has illegally been denied by applying the provisions of J.J. Act, 2015 on the ground that he was capable of understanding the consequence of the offence and circumstances in which he had allegedly committed the offence. – Impugned order passed by the Court below is not sustainable and is liable to be quashed.
Result: Revision Allowed.
JUDGMENT :
DINESH PATHAK, J.
1. Heard Sri. Akhilesh Srivastava, learned counsel for revisionist, Sri. O.P. Mishra, learned A.G.A. for State, Sri. Satendra Kumar Upadhyay, learned counsel for O.P. No. 2, who has refused to file the counter affidavit, and perused the record on board.
2. The instant criminal revision under Section 397/401 Cr.P.C. has been preferred against order dated 22.11.2019 passed by Additional Sessions Judge/Fast Track Court, Court No. 2, Aligarh in Sessions Trial No. 961 of 2012 arising out of Case Crime No. 189 of 2012 under Sections 393, 302 IPC, Police Station-Akrabad, District-Aligargh, whereby application dated 09.07.2017 filed by revisionist, claiming himself to be a juvenile at the time of incident, has been rejected.
3. In the present matter, revisionist is claiming himself as a juvenile. As per FIR version, in the intervening night of 03/04.05.2012, accused-revisionist along with two other persons barged into the tower with an intention of looting the battery installed there. While they were challenged, two of the accused fled away from the scene and third accused i.e. revisionist was caught hold by the informant's son namely, Bablu and in order to set himself free, accused-revisionist discharged fire shot upon Bablu, who sustained injury on his chest and died on the spot. In the process of catching hold, one wallet, one combination plier (pilash), one wrench (pana), a handle of screwdriver and one white towel fell down on the spot. The wallet contained driving license and identity card of revisionist as well as one mobile sim and cash amounting Rs.30 in it. On the basis of aforesaid recovery from the spot, accused-revisionist has been named in the FIR. Taking the plea of juvenility, revisionist claimed for separate trial and to this effect, he moved an application dated 09.07.2017 before the trial Court to declare him juvenile, as his date of birth is 07.07.1994 and at the time of incident, he was hardly aged about 17 years 9 months and 27 days.
4. In support of his claim of juvenility, revisionist had filed School Leaving Certificate and one medical report. Ram Singh, father of revisionist, and one Veer Pal Singh, teacher of the school have given their statements in support of revisionist's claim of juvenility and they had corroborated the claim of revisionist that his date of birth is 07.07.1994.
5. After examining the school certificate, which was proved by school teacher from the S. R. Register and statements of witnesses, learned Court below came to a conclusion that date of birth of revisionist is 07.07.1994 and, accordingly, at the time of incident i.e. 04.05.2012 he was aged about 17 years 10 months, but the Court below has refused to treat the revisionist as a juvenile on the ground that hardly 50-55 days were short in completion of 18 years of his age and he was able to understand the consequences of the occurrence.
6. Learned counsel for the revisionist submitted that since the revisionist was a juvenile, as his date of birth was noted to be 07.07.1994, on the date of occurrence i.e. 04.05.2012, he is entitled to the benefit of provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as “J.J. Act, 2000”). The Court below had partly applied J.J. Act, 2000 only with respect to determining the age of present revisionist but it had illegally applied the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as “J.J. Act, 2015”) in negating his juvenility on the ground of his ability to understand the nature of crime. Learned counsel for revisionist has emphasized upon the provisions of J.J. Act, 2015 which denotes the power of Board by conducting preliminary assessment into the heinous offence. Under the aforesaid provision Board has been entrusted to conduct preliminary enquiry to assess with regard to mental and physical capacity of an accused for committing a crime and also his ability to understand the
