@JUDGMENTTAG-ORDER
Narendra Kumar Jain, J.@mdashHeard learned Counsel for the parties.
2. Complainant-petitioner Khem Chand preferred this revision petition against the impugned order dated 01.03.2007 passed by the Additional District & Sessions Judge, Fast Track No. 3, Headquarter Khetri, in Criminal Case No. 49/2007, whereby the Court came to a conclusion that accused Jaipal @ Sitaram is juvenile and referred his case for trial to the Juvenile Court.
3. Accused-non-petitioner No. 2 Jaipal @ Sitaram was facing trial before the Additional District & Sessions Judge No. 3, Headquarter Khetri. Gheesa Ram, the father of accused, filed his affidavit along-with the certificate of the accused issued by the Board of Secondary Education, before the trial court on 01.03.2007 and contended that the date of birth of the accused is 25th June, 1989, therefore, he was below 18 years of age on the date of incident, hence his case may be referred to Juvenile Court for trial.
4. The trial court, after hearing the Public Prosecutor, held that on the date of incident the age of accused was 17 years 5 months, therefore, he was less than 18 years of age and, as such, separated his case from the case of other accused-persons and sent the same for trial to Juvenile Court.
5. The learned Counsel for the complainant- petitioner contended that the trial court committed an illegality in passing the impugned order without making any proper inquiry in accordance with Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter shall be referred to as ''the Act of 2000''). He contended that on 1st March, 2007, the father of the accused filed his own affidavit along-with certificate of the accused issued by the Board of Secondary Education and without making any further inquiry in the matter and without affording any opportunity to complainant, came to the conclusion that the accused is juvenile whereas it was necessary for the trial court to hold an inquiry therein. He also referred a certificate dated 22.02.2007 issued by the Headmaster, Government Upper Primary School, Sheolpura, District Jhunjhunu, filed with this revision petition, wherein date of birth of accused is mentioned as 06.12.1987 and contended that accused was above 18 years of age on the date of incident. He contended that he could not place the said certificate on record as no inquiry was conducted by the trial court on this issue in accordance with Section 7A of the Act of 2000, otherwise he would have placed the said certificate and other evidence on the record before the trial court. He also contended that evidence in the shape of affidavit of father of accused was wrongly considered by the trial court as the said evidence i.e. affidavit was prohibited in an inquiry u/s 7A of the Act of 2000.
6. The learned Counsel for the accused-nonpetitioner No. 2 contended that the trial court was justified in recording the finding about juvenility of the accused on the basis of certificate of the accused issued by the Board of Secondary Education, wherein his date of birth was mentioned as 25th June, 1989, and, on that basis, he was only 17 years and 5 months of age on the date of incident. In support of his submissions, the learned Counsel for the accused-nonpetitioner No. 2 referred to the following decisions:
1. 2004 (2) R.Cr.D. 124 (Raj.) Gurdev Singh v. State of Rajasthanand Anr.;
2.
3. 1997 (1) Crimes 201 Janardan Pandey v. State of U.P.
7. According to the learned Counsel for the accused-non-petitioner No. 2, the certificate of the accused-non-petitioner issued by the Board of Secondary Education prevails over any other evidence as held in the cases afore-cited, therefore, no interference should be made in the impugned order passed by the trial court. He further submits that so far as the document, Annexure-2 produced by the petitioner along-with this revision petition showing the date of birth of accused as 6th December, 1987, is concerned, the said certificate was not a part of the record of the trial court, therefore, the same should not be looked into and considered while deciding the revision petition and no finding should be recorded on that basis that accused was not juvenile. He further submits that it was a duty of the complainant- petitioner to move a proper application before the concerned court itself along-with documents, which he wanted to be relied upon, and only thereafter the said documents could have been taken into consideration. He, therefore, contended that there is no merit in this petition and the same may accordingly be dismissed.
8. I have considered the submissions of learned Counsel for both the parties and also examined the impugned order passed by the trial court.
9. From the impugned order it appears that the present case was fixed before the trial court on 1st March, 2007, and on that date Gheesa Ram, the father of accused-non-petitioner No. 1 Jaipal @ Sitaram, filed his affidavit along-with the certificate of the accused issued by the Board of Secondary Education, showing the date of birth of accused as 25th June, 1989, and on that basis the trial court came to a conclusion that on the date of incident the accused was 17 years 5 months of age, therefore, he was less than 18 years of age and, in these circumstances, the trial court held that the accused is a juvenile within the meaning of Section 2(k) of the Act of 2000, and consequently the trial court separated the case of the accused and referred the same to the Juvenile Court for trial.
10. Section 7A of the Act of 2000 (inserted by the Act 33 of 2006 with effect from 22nd August, 2006) reads as under:
7A. Procedure to be followed when claim of juvenility is raised beforeany Court.-(1) Whenever a claim of juvenility is raised before any courtor a court is of the opinion that anaccused person was a juvenile on thedate of commission of the offence, the court shall make an inquiry, takesuch evidence as may be necessary(but not an affidavit) so as to determine the age of such person, andshall record a finding whether theperson is a juvenile or a child or not, stating his age as nearly as maybe:
Provided that a claim of juvenilitymay be raised before any court and itshall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisionscontained in this Act and the rules made thereunder, even if the juvenilehas ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to bea juvenile on the date of commissionof the offence under Sub-section (1), it shall forward the juvenile to theBoard for passing appropriate ordersand the sentence, if any, passed by acourt shall be deemed to have no effect. The above provision reveals that whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be.
11. The impugned order passed by the trial court reveals that on 1st March, 2007 Shri Gheesa Ram, the father of the accused-non-petitioner No. 2, filed his own affidavit along-with the certificate of accused issued by the Board of Secondary Education, for the purpose of declaration of the accused as juvenile. After receipt of the aforesaid affidavit and the certificate, it was a duty of the trial court to make an inquiry on the point as to whether accused Jaipal @ Sitaram was juvenile or not within the meaning of Section 2(k) of the Act of 2000 on the date of incident. The matter should have been fixed for producing evidence by the parties. I find that no such proceedings took place in the trial court before holding that accused is a juvenile. The trial court, therefore, committed an illegality in not holding an inquiry on the above point in accordance with Section 7A of the Act of 2000.
12. So far as certificate produced by the complainant-petitioner with this revision petition is concerned, the learned Counsel for the accused is correct that the said certificate cannot be taken into consideration by this Court as it was not a part of record of the trial court. It was a duty of the complainant-petitioner to place the said certificate or any other evidence before the court concerned, but the same could not be produced as the trial court failed to make an inquiry in accordance with Section 7A of the Act of 2000 in the present case.
13. In these circumstances, the impugned order passed by the trial court cannot be allowed to be sustained and the same is liable to be set-aside. The parties will have a right to produce evidence before the trial court in support of their contentions and, if necessary, the trial court will take further evidence in the case before recording a finding about juvenility of the accused.
14. Consequently, the revision petition is allowed. The impugned order dated 1st March, 2007 passed by the trial court is set-aside. The trial court is directed to make an inquiry in the matter in accordance with the provisions of Section 7A of the Act of 2000 and, after affording an opportunity to the parties to lead evidence in the case, will record a finding as to whether accused Jaipal @ Sitaram was juvenile or not within the definition of Section 2(k) of the Act of 2000, on the date of incident.
15. Both the parties are directed to appear before the trial court on 26th March, 2008.
16. Any observation made herein-above will not prejudice the case of either party.
