Back
2011 (2) JLJ 245
G.D. Saxena, J.
Sakir Mewati and another
v.
State of M.P.
Criminal Revision No.306 of 201
Criminal Case No.25 of 2011;
Decided on 28.6.2011.
To my mind, the key lies in determining whether the Sessions Court merely formed an opinion or recorded a definitive finding with regard to the age of the accused. If it was merely an opinion then it would be open to the Juvenile Justice Board to conduct an inquiry into the age of the person who is apparently a juvenile under section 49 of the said Act. However, if the Sessions Court has returned a definite finding with regard to the age of the accused based upon an inquiry conducted by it then it would not be open to the Juvenile Justice Board to conduct an inquiry afresh under section 49 of the said Act. [Para 16
Held: In the facts of the present case, it is apparent that the order passed by the learned Additional Sessions Judge was merely an expression of an opinion that the accused petitioners were not below 18 years of age on the date of commission of alleged offence. Therefore, the conclusion arrived at by the learned Additional Sessions Judge being mere expression of an opinion with regard to the age of the accused-petitioners was not a definite finding indicating that the said accused were not juveniles. In such situation, and as observed by the apex Court in the aforecited cases, the matter deserves to be remitted back to the trial Court. AIR 2006 SC 1933 and AIR 2009 SC 314 followed. (1989) PLJR 507 relied on. [Para 17
(2) Juvenile Justice (Care and Protection of Children) Act, 2000 -- S.8 (J) -- Criminal P.C., 1973 -- S.397/401 -- doubt about juvenility of accused -- criminal Courts need to make a preliminary enquiry to form an opinion about age and to refer the matter to juvenile Court in case of opinion being affirmative -- no need to refer to juvenile Court if opinion is otherwise -- but, otherwise opinion will be subject to revision by a superior Court. [Para 10
(3) Juvenile Justice (Care and Protection of Children) Act, 2000 -- S.49 -- even if accused declared juvenile by Sessions Court -- sent to the Juvenile Justice Board -- it would be incumbent upon the Board to hold an inquiry about juvenility of accused. [Para 16
¼1½ fd‘kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ vf/kfu;e] 2000 && /kkjk 6] 7 rFkk 49 && naM izfdz;k lafgrk] 1973 && /kkjk 397@401 && gR;k dk vijk/k && vfHk;qDr O;fDr;ksa dk fd‘kksj gksus dk nkok && vfrfjDr ls‘ku U;k;k/kh‘k dks mudh vk;q dk vo/kkj.k djus dh ‘kfDr && ijarq] tk¡p ugha djokbZ && fu"d"kZ fn;k fd vfHk;qDr fd‘kksj ugha && ,slk fu"d"kZ jk; dh vfHkO;fDr ek= ekuk tk,xk && ;g fu.kkZ;d fu"d"kZ ugha && ekeyk fof/k ds vuqlkj vfHk;qDr O;fDr;ksa dh vk;q dk iqu% vo/kkj.k djus ds funs‘k lfgr okil Hkstk x;kA esjs fopkj ls] mRrj bldk vo/kkj.k djus esa gS fd D;k l= U;k;ky; us vfHk;qDr dh vk;q ds ckjs esa jk; ek= cukbZ gS ;k fu.kkZ;d fu"d"kZ vfHkfyf[kr fd;k gSA ;fn;g jk; ek= Fkh rc fd‘kksj U;k; cksMZ ds ikl ml O;fDr dh vk;q ds ckjs esa tk¡p djus dk fodYi gksxk tks mDr vf/kfu;e dh /kkjk 49 ds v/khu izdV :i ls fd‘kksj gSA rFkkfi] ;fn ls‘ku U;k;ky; us vfHk;qDr dh vk;q ds ckjs esa Lo;a }kjk dh xbZ tk¡p ds vk/kkj ij fu"d"kZ vfHkfyf[kr fd;k gS rc fd‘kksj U;k; cksMZ ds ikl mDr vf/kfu;e dh /kkjk 49 ds v/khu u, fljs ls tk¡p djus dk fodYi ugha gksxkA ¼iSjk 16½ vfHkfu/kkZfjr % izLrqr ekeys ds rF;ksa ds vuqlkj] ;g izdV gS fd vfrfjDr ls‘ku U;k;k/kh‘k }kjk ikfjr vkns‘k bl jk; dh vfHkO;fDr ek= gS fd vfHk;qDr ;kphx.k vfHkdfFkr vijk/k djus ds fnukad dks 18 o"kZ dh vk;q ls de ugha FksA blfy,] fo)ku vfrfjDr ls‘ku U;k;k/kh‘k }kjk fudkyk x;k fu"d"kZ vfHk;qDr&;kphx.k dh vk;q ds laca/k esa jk; dh vfHkO;fDr ek= gksus ds dkj.k ;g bafxr djus okyk fu.kkZ;d fu"d"kZ ugha Fkk fd mDr vfHk;qDr fd‘kksj ugha FksA bl fLFkfr esa ;Fkk iwoksZn~/k`r ekeyksa esa ‘kh"kZ U;k;ky; }kjk dh xbZ leqfDr ds vuqlkj] ekeyk fopkj.k U;k;ky; dks okil Hksts tkus ;ksX; gSA , vkb vkj 2006 ,l lh 1933 rFkk , vkb vkj 2009 ,l lh 314 vuqlfjrA ¼1989½ ih ,y ts vkj 507 voyafcrA ¼iSjk 17½ ¼2½ fd‘kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ vf/kfu;e] 2000 && /kkjk 8 ¼1½ && naM izfdz;k lafgrk] 1973 && /kkjk 397@401 && vfHk;qDr dh fd‘kksjkoLFkk ds ckjs esa lansg && nkafMd U;k;ky; dks izkjafHkd tk¡p djuk] vk;q ds ckjs esa jk; cukuk rFkk jk; ldkjkRed gksus dh n‘kk esa ekeys dks fd‘kksj U;k;ky; Hkstuk vko‘;d && ;fn jk; vU;Fkk gS rc fd‘kksj U;k;ky; Hkstuk vko‘;d ugha && ijarq] vU;Fkk jk; mPprj U;k;ky; }kjk iqujh{k.k dk fo"k; gksxhA ¼iSjk 10½ ¼3½ fd‘kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ vf/kfu;e] 2000 && /kkjk 49 && Hkys&gh vfHk;qDr dks ls‘ku U;k;ky; }kjk fd‘kksj ?kksf"kr fd;k x;k gks && fd‘kksj U;k; cksMZ Hkstk x;k && cksMZ ds fy, vfHk;qDr dh fd‘kksjoLFkk ds ckjs esa tk¡p djuk vko‘;d gksxkA ¼iSjk 16½
1. This revision petition under section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000, read with sections 397/401 of the Code of Criminal Procedure, 1973, has been preferred against an order dated 16th March 2011 in Criminal Case No.25/2011 passed by the First Additional Sessions Judge Guna, holding after conducting an inquiry that the petitioners are not juveniles.
2. The facts necessary for the disposal of this petition are that on 6th December 2010 at Town of Raghogarh, District Guna, one Deepak Soni s/o Babulal Soni was reported to be missing from his house. Said report was recorded in Rojnamcha of the police station. During search on 8.12.2010, the dead body of Deepak Soni in a gunny beg was found under beneath of culvert of ITI at Raghogarh. Accordingly, Marg report was registered. During inquiry, it appeared that the accused including petitioners committed murder of missing Deepak Soni and caused the evidence of offence to be disappeared with an intention to suppress the offender from legal punishment. An FIR was lodged and after investigation the charge-sheet was filed before the criminal Court. After committal, the Sessions trial was commenced before the trial Court at Guna. During trial, the petitioners filed the application stating that on the date of incident, i.e., 6th December 2010, they were below 18 years of age, hence they being juveniles it was requested that their case be referred to the Juvenile Justice Court for holding an inquiry for determination of the question regarding their age and trial before the board. The trial Court on the basis of the evidence of the petitioners filed with the application and the evidence collected during investigation, concluded that. the petitioners were not juvenile. Hence, this revision.
3. The learned counsel for the petitioners referred to the provisions of section 7 of the said Act as well as the provisions of section 49 thereof. He submitted that the finding of the learned Additional Sessions Judge ought to be regarded only as an opinion and should be on the same footing as an opinion of a Magistrate under section 7. Therefore, it was incumbent upon the Juvenile Justice Board to hold a full fledged enquiry under section 49 and record a definite finding with regard to the age of the accused. According to him, the order passed by the learned Additional Sessions Judge is in the nature of a mere opinion. He also referred to the school certificate and the mark sheets to contend that the petitioners were below 18 years of age, but the trial Court relied on the ossification test conducted during investigation which was not conclusive proof of age. Hence the impugned order was patently illegal, arbitrary and deserves to be set aside.
4. On the other hand, the learned Panel Lawyer for the State referred to section 6 of the said Act in particular sub-section (2) thereof which clearly stipulates that the powers conferred on the Juvenile Justice Board by or under the said Act may also be exercised by the High Court and the Court of Sessions, when the proceeding comes before them in appeal, revision or otherwise. According to him, the order passed by the learned Additional Sessions Judge would be in exercise of the powers conferred under section 6(2) and, therefore, it was not necessary for the Juvenile Justice Board to have conducted a full-fledged inquiry. Hence, it is prayed that the revision be dismissed.
5. Before considering the rival contentions of the parties, it would .be relevant to set out the material provisions of the said Act:
"6. Powers of Juvenile Justice Board. -- (1) Where a Board has been constituted for any district or a group of districts, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law."
6. The powers conferred on the Board by o
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
