The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No.99 of 2024 ------ Sarfaraz Ansari @ Sarfraj Ansari @ Sarfaraj Ansari @ Sarfraz Ansari represented by his father as natural guardian Abdul Ansari .... .... …. Appellant The State of Jharkhand Versus .... .... .... Respondent
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellant For the State : Mr. Yogesh Modi, Advocate : Mr. Anup Pawan Topno, A.P.P. ------ Order No.04 / Dated :16.05.2024 I.A. No.2113 of 2024 Heard learned counsel in I.A. No.2113 of 2024 under Section 5 of the Limitation Act for condoning the delay of 137 days in preferring the criminal appeal. It is submitted by the learned counsel on behalf of appellant that he comes from a poor family and his father being a daily wage labour and therefore could not manage resources and necessary documents for preferring appeal ag,ainst the impugned order within stipulated time. Considering the grounds taken, I.A. No.2113 of 2024 is allowed and the delay in preferring the instant criminal appeal, is condoned. Cr. Appeal (S.J.) No.99 of 2024 1. Instant criminal appeal has been preferred against the order dated 27.07.2023 whereby and whereunder the application of the appellant has been dismissed as withdrawn under Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short JJ Act), an alternative prayer has been made seeking permission application afresh under Section 9 of JJ Act. 2. It is submitted by learned counsel that the appellant was juvenile and as per school records a petition under Section 9 of JJ Act was filed before the Children Court for age determination. After the said petition was filed, relevant records were called for, and evidence was also recorded in the enquiry on the point of age. However, since no order was passed, under a wrong advice and the said petition under Section 9 of JJ Act was withdrawn on behalf of appellant. It is submitted that age determination under Section 9 of JJ Act is essential for the ends of justice and
Decision
enquiry can be held at any stage. At present, the case has not been disposed of and is at the stage of argument. It is submitted that age of the appellant has not been determined and the trial court is proceeding in the matter. 3. Learned A.P.P. opposed the prayer. It is submitted by learned counsel that 1 order for age determination has been passed on 25.06.2019 wherein the appellant was found to be not juvenile. 4. From para-9 of the memo of appeal, it appears that the age of the appellant has already been assessed by the learned JJ Board on 16.08.2019 and found to be 16 years under Section 19 of the JJ Act, 2015. But, as per the submissions advanced on behalf of the appellant, although the enquiry was initiated on the petition filed under Section 9 of the JJ Act, but that was not concluded and consequently petition under sections 9 was withdrawn on 27.07.2023 and order has not been passed. 5. The precondition for need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 is that the child should have completed or be more than 16 years of age and should be capable of understanding the heinous nature of the offence. Facts are not very clear from the submissions made as to whether the age determination of the appellant has been made as per the scheme of the Juvenile Justice Act, 2015 more particularly Section 9 and the order has been passed or not. If the order has already been passed, the said order has not been challenged and brought on record. The Courts need to be however mindful of the provisions of the Juvenile Justice Act while proceeding against one who claim to be child in conflict with law at the time of commission of the offence. If any final order regarding age determination has not been passed, then Court need to pass order as per law before proceeding further, keeping in view the law as laid down by the Apex Court in Karan v. State of M.P., (2023) 5 SCC 504 : 2023 SCC OnLine SC 217 at page 512. 6. The next question is as to what relief the appellant can be granted in view of the fact that he has been held to be a child and that too below 16 years of age under the 2015 Act. In this context Section 9 of the 2015 Act would be relevant. The same is reproduced hereunder: “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: 2 Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act. (3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect. (4) In case a person under this section is required to be kept in protective custody, while the person's claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety.” 7. A perusal of the aforesaid section firstly gives a right to a person alleged to have committed an offence to claim that he is a child on the date of commission of offence and if such a claim is raised, the court concerned shall make an inquiry, take such evidence as may be necessary other than the affidavit to determine the age of such person. The proviso to sub-section (2) further makes it clear that such a claim can be raised before any court and the same could be recognised at any stage even after the case has been finally decided. The claim so made would be determined in accordance with the provisions of the 2015 JJ Act and the Rules made thereunder, even if such person has ceased to be a child whether on or before the commencement of the 2015 of JJ Act. The law provides full coverage to a person who is established to be a child on the date of the offence to avail the benefits available to a child under the 2015 of JJ Act even if the case has been finally decided and also such person has attained majority. Further, sub-section (3) provides that if it is found in the inquiry that such person was a child on the date of commission of such offence then the court is required to forward the child to the Juvenile Justice Board (in short “JJB”) for passing appropriate orders and further if any sentence has been imposed by the court, the same shall be deemed to have no effect. In view of the above statutory provisions and in view of the findings recorded, the appellant having been held to be a child on the date of commission of the offence, the sentence imposed has to be made ineffective. Criminal Appeal is accordingly disposed of. (Gautam Kumar Choudhary, J.) Anit 3