Juvenile Justice; Sher Singh @ Sheru Vs. State of U.P. [Allahabad High Court, 21-09-2016]

Juvenile Justice (Care and Protection of Children) Act, 2000 – Ss. 7A & 20 – Procedure to be followed when claim of juvenility is raised before any court – Special provision in respect of pending cases.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Hon’ble V.K. Shukla, J., Hon’ble Ramesh Sinha,J. and Hon’ble Bharat Bhushan,J.

Delivered on: 21.09.2016

Criminal Appeal No.1883 Of 2013

Sher Singh @ Sheru Vs. State of U.P.

Counsel for Appellant : Dharmendra Singhal, Babit Kumar, J.S. Audichya, Rajul Bhargava; Counsel for Respondent : Government Advocate

V.K. Shukla, J.

Kidnapping for ransom of a 3 year old child and his recovery in a police raid led to a trial by the Sessions Court in which the appellant has been convicted by the judgement dated 15.4.2013.

In this appeal, an issue of juvenility has been raised in the background that the incident in which the appellant is involved is of 15th/16th May 2003. The appellant claims that his date of birth recorded in the High School Examination (Matriculation) record is 15th October 1986 and as such on the date of the incident, he had not attained the age of 18 years, consequently, he was entitled to the benefit of being a juvenile as contemplated under the Juvenile Justice (Care and Protection of Children) Act, 2000 read with the the Juvenile Justice (Care and Protection of Children) Rules 2007 framed thereunder.

What appears from the record is that the appellant had moved an application for declaring him to be juvenile before the concerned Court in Session Trial No. 188 of 2004. The prosecution had moved an application for conducting a joint trial of this case along with the Session Trial No. 56-A of 2004 and 188-A of 2004.

The application moved for declaring the appellant a juvenile in Session Trial No. 188 of 2004 was sent to the Juvenile Justice Board and in that file, vide order dated 5.9.2005, the claim of the appellant to declare him a juvenile in Case Crime No. 147 of 2004 and Case Crime No. 148 of 2004, the Juvenile Justice Board rejected the plea of the appellant after getting a medical report from the Chief Medical Officer, Mathura dated 4.7.2005. The order dated 5.9.2005 categorically records that since no other evidence was adduced the parties agreed for the disposal of the application and it was held that the applicant was aged about 19 years on the date of the incident in the aforesaid case crime numbers.

After almost four years thereafter, a prayer appears to have been made in Session Trial No. 188-A of 2004 connected with the same incident praying for declaration of the appellant in the said Session Trial as a juvenile. The matter was examined by the Juvenile Justice Board and on 19.11.2009, the prayer for declaring him a juvenile was rejected by the Juvenile Justice Board against which the appellant filed an appeal on 19.9.2011 in terms of Section 52 of the 2000 Act after a period of almost two years. It appears that at the stage of appeal the matriculation certificate was adduced and pressed for the first time as it conformed to the 2007 Rules. In these proceedings, a reference was made of the application moved for declaring the appellant to be juvenile bearing no. 35-Kha. This was the application, which was moved for sending the file to the Juvenile Justice Board, but prior to that, after the order dated 5.9.2005 referred to hereinabove, a request had been made to send the file to the learned Sessions Court.

Thus two sets of orders came into existence in relation to the claim of juvenility of the appellant, one dated 5.9.2005 and the other dated 19.11.2009.

The appeal, which was against the order dated 19.11.2009 was dismissed on 29.9.2011 and the appellate court recorded all the above noted facts in the said order. What appears from the order dated 29.9.2011 is that this contention of the appellant about declaring him to be a juvenile was dismissed on the observations that were noted including the observation that no appeal had been filed against the order dated 5.9.2005 passed earlier in relation to S.T. No. 188 of 2004.

Faced with this at this stage, the appellant filed an Appeal No. 153 of 2012 against the order dated 5.9.2005, which was dismissed on 4.2.2013 firstly, on the ground that the appeal had been presented after almost seven years and there was no reason to condone the delay and secondly, the appellant had full knowledge of the order dated 5.9.2005, that was subject matter of consideration by the Juvenile Justice Board in the subsequent order dated 19.11.2009 and dismissal of the appeal on 29.9.2011.

These facts have been mentioned clearly in the appellate order dated 4.2.2013.

The appellant, thereafter probably realising the legal obstruction on account of the order dated 5.9.2005 having become final, preferred Writ Petition No. 3438 of 2013 which was dismissed as withdrawn treating it to be infructuous vide order dated 13.10.2014 but with an observation that the right of the petitioner to raise the issue of juvenility shall not be affected in the present appeal.

The judgment in the writ petition dated 13th October 2014 is extracted hereunder :

“Learned counsel for the petitioner submitted that during the course of trial, the petitioner moved an application under Section 7 (a) of the Juvenile Justice Act, 2000 to declare him as juvenile. However, that application was rejected by the court concerned and accordingly, the petitioner was prosecuted under the general criminal law and was convicted by the trial court. Against the said judgment and order of conviction, the petitioner has already preferred criminal appeal in this Court.

Thus, this writ petition has now become infructuous. Learned counsel for the petitioner prays to withdraw this writ petition.

Accordingly, this writ petition is dismissed as withdrawn.

However, it may not affect the right of the petitioner to raise the issue of juvenility in the appeal pending in this Court. “

These peculiar facts, about the subsequent claim of juvenility emanating from the order dated 19.11.2009 rejecting the claim on the ground of excessive delay, and earlier rejection dated 5.9.2005 that was challenged subsequently in appeal, after rejection of the appeal against the order dated 19.11.2009 on 29.9.2011, gave rise to the writ petition that was dismissed on 13.10.2014 with observations noted therein.

A Division Bench that heard the appeal earlier passed the following order on 28.5.2015:-