Criminal Revision No. 138 of 2017. Case: Manoj Vishwkarma Vs State of Chhattisgarh. Chhattisgarh High Court
|Case Number:||Criminal Revision No. 138 of 2017|
|Party Name:||Manoj Vishwkarma Vs State of Chhattisgarh|
|Counsel:||For Appellant: Dheerendra Pandey, Advocate and For Respondents: Ashish Surana, Panel Lawyer|
|Judges:||Sanjay K. Agrawal, J.|
|Issue:||Code of Criminal Procedure, 1973 (CrPC) - Sections 313, 397, 401; Indian Penal Code 1860, (IPC) - Sections 363, 366, 376; Juvenile Justice (Care and Protection of Children) Act, 2015 - Sections 102, 49, 9, 94, 94(2), 94(2)(iii); Protection of Children from Sexual Offences Act, 2012 - Sections 3, 4|
|Judgement Date:||February 27, 2017|
|Court:||Chhattisgarh High Court|
Sanjay K. Agrawal, J.
The State of Chhattisgarh through the Station House Officer, Police Station Kunda, charge-sheeted the applicant herein for commission of offence punishable under Sections 363, 366, 376 of the IPC; Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the Act of 2012'). The case of the applicant is being tried by the jurisdictional special court, Kawardha constituted to try the offences under the Act of 2012.
The applicant herein/accused raised the issue of juvenility by filing an application to the effect that on the date of alleged offence i.e. 25-3-2016, the applicant was juvenile as his actual date of birth is 6-8-2000 which is less than 18 years and therefore he be sent to the observation home, whereas, it is the case of the prosecution that the date of birth of the applicant/accused is 1-10-1997 as such, he was major on the date of occurrence of the offence i.e. more than 18 years and not juvenile. Learned Special Judge previously by order dated 22-7-2016 rejected the application holding that the applicant was not juvenile on the date of alleged commission of offence which was questioned by the applicant herein in Criminal Revision No. 800/2016 and this Court by order dated 30-8-2016 directed the Special Judge to hold an enquiry and to decide the issue of juvenility afresh.
The Special Judge constituted under the Act of 2012, considered the application afresh after making enquiry and finally held that the applicant was not juvenile on the alleged date of commission of the offence.
Feeling aggrieved against the order of the learned Special Judge, this revision has been preferred under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015, incorrectly mentioned as "Section 397 read with Section 401 of the Code of Criminal Procedure, 1973", questioning the order by which the learned Special Judge held the applicant not to be juvenile on the date of alleged commission of offence.
Mr. Dheerendra Pandey, learned counsel for the applicant, would submit that the learned Special Judge has committed illegality in rejecting the application holding that the applicant was not juvenile on the date of offence. He would further submit that the Special Court has ignored the school certificate in which the applicant's date of birth is still recorded as 6-8-2000 which has duly been corroborated, as the Principal of Geetanjali Middle School, Bandhuvapara, Sarkanda, Bilaspur, has been examined on oath and she has clearly stated that the date of birth of the applicant is 6-8-2000 meaning thereby, the applicant was juvenile on the date of offence i.e. 25-3-2016 and he was less than 18 years, therefore, the finding of the Special Judge deserves to be quashed.
Mr. Ashish Surana, learned Panel Lawyer for the State, would support the impugned order and would submit that the Special Judge is absolutely justified in holding that the applicant was not juvenile on the date of commission of alleged offence and therefore the criminal revision deserves to be dismissed.
I have heard learned counsel for the parties and considered their rival submissions and also gone through the record critically and carefully.
On being charge-sheeted, the applicant herein raised the plea of juvenility before the trial Court by making an application which was rejected by the Special Court and pursuant to the order of this Court in the revision filed by the applicant herein, enquiry has been made and the impugned order has been passed.
The question for consideration is, what is the correct procedure to be followed in making enquiry to determine the juvenility of an accused person who raises an issue of juvenility having brought before the Court for trial.
The Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'the Act of 2015') came into force with effect from 1-1-2016 and the Juvenile Justice (Care and Protection of Children) Act, 2000 was thereby repealed. Section 9 of the Act of 2015 provides for procedure to be followed by a Magistrate who has not been empowered under this Act and states as under:-
9. Procedure to be followed by a Magistrate who has not been empowered under this Act.--
(1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.
(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:
Provided that such a claim may be raised before any court and it...
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