Ballu @ Balram Vs. State of M.P. - Court Judgment

Excerpt:
- - since the applicant was poor and unable to engage a counsel, therefore, the trial court provided him a counsel from the legal aid.orderk.s. chauhan, j.1. this criminal revision under section 397/401 of the code of criminal procedure has been preferred being aggrieved by the order dated 1-6-2007 passed by special judge, damoh in s.t. no. 83/2006, whereby the application filed by applicant for treating him juvenile has been rejected.2. the brief facts of the case are that the applicant is facing trial for the offences under section 302 of indian penal code and under section 3(2)(v) of the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989. in this case, the applicant filed an application on 27-1-2007 on the ground that on the date of incident he was below 18 years of age, therefore, he be treated juvenile. the reply was filed by the prosecution mainly contending that the objection ought to have been taken at the earliest opportunity available and by passage of time he has attained the majority. the trial court directed to hold the inquiry and after recording of the evidence and hearing the parties came to the conclusion that on the date of incident the age of the applicant was 17 years 8 months and 26 days but held that as the applicant has crossed the age of 18 years when an application was filed and the offence was also under section 3(2)(v) of the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989 the application was rejected. being aggrieved by that order the instant revision has been filed on the grounds mentioned in the memo of revision.3. shri pradeep naveriya, learned counsel for the applicant submitted that the applicant was below 18 years of age on the date of incident, therefore, the applicant be treated as juvenile. the trial court has erroneously rejected the application which deserves to be set aside.4. on the contrary, shri vikram singh, learned panel lawyer appearing on behalf of respondent/state supported the impugned order mainly contending that applicant has attained majority during the pendency of the case, hence his trial by sessions court is justified.5. considered the rival contentions raised by the learned counsel for the parties.6. on perusal of record it reveals that the incident is of 27-9-2006. the appellant was arrested on 28-9-2006. in arrest memo his age was shown as 19 years. after completing the investigation the charge-sheet was filed in the court of cjm who committed the case to the sessions court for trial. since the applicant was poor and unable to engage a counsel, therefore, the trial court provided him a counsel from the legal aid. shri t.r. vyas, advocate filed vakalatnama on 11-1-2007 on behalf of the applicant. the case was fixed for arguments on 27-1-2007. on this date the counsel for the applicant filed an application on the ground that the applicant was below 18 years of age on the date of incident, therefore, he may be treated juvenile. on 3-2-2007 the prosecution submitted the reply and opposed the application. the court directed to make the inquiry in the matter. two witnesses namely devidayal and ramkishan yadav were examined on behalf of the applicant and dr. r.k. rawat who conducted ossification test was examined on behalf of prosecution. devidayal who is the father of applicant ballu @ balram deposed before the court that the dale of birth of his son balram is 1-1-1989. he filed the photocopy of the mark-sheet (exh. c-1). ramkishan yadav, headmaster of the concerned school deposed that according to the admission register the date of birth of applicant is 1-1-1989 which has been entered by him. thus, by this evidence applicant tried to establish that he was below 18 years of age on the date of incident.7. dr. r.k. rawat who medically examined the applicant and also conducted his ossification test arrived at the conclusion that the age of applicant is 19 years or above. however, he admitted that there may be variation of two years . he has submitted report (exh. c-2) in this regard.8. after appreciating the entire evidence trial court found that on the date of incident the age of the applicant was 17 years 8 months and 26 days. thus, it is apparent that the applicant was below 18 years of age on the date of incident.9. in the case of pratap singh v. state of jharkhand and anr. : air 2005 sc 2731, the apex court held thus:10. thus, the whole object of the act is to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles. it is a beneficial legislation aimed at making available the benefit of the act to the neglected or delinquent juveniles. it is settled law that the interpretation of the statute of beneficial legislation must be to advance the cause of legislation for the benefit of whom it is made and not to frustrate the intendment of the legislation.12. clause (1) of section 2 of the 2000 act defines 'juvenile in conflict with law' as meaning a juvenile who is alleged to have committed an offence. the notable distinction between the definitions of the 1986 act and the 2000 act is that in the 1986 act 'juvenile in conflict with law' is absent. the definition of delinquent juvenile in the 1986 act as noticed above is referable to an offence said to have been committed by him. it is the date of offence that he was in conflict with law. when a juvenile is produced before the competent authority and/or court he has not committed an offence on that date, but he was brought before the authority for the alleged offence which he has been found to have committed. in our view, therefore, what was implicit in the 1986 act has been made explicit in the 2000 act.the reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the court. (para 37)10. in the case of rajinder chandra v. state of chhattisgarh and anr. 2002 scc (cri) 333, the apex court held thus:5. it is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. in arnit das v. state of bihar, this court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper technical approach should not be a adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. the law, so laid down by this court, squarely applies to the facts of the present case.11. it is apparent that the applicant was below 18 years of age on the day of incident. thus, he was juvenile. he was not in a position to engage the counsel. an advocate was provided on the state expenses. the learned counsel of the applicant filed an application for treating applicant as juvenile at the earliest possible opportunity. there is no fault on the part of the applicant to protract the trial or delay the matter, therefore, he requires to be dealt with by the juvenile justice board and his trial by the sessions court is not justified. the trial court has committed an illegality in rejecting the application filed by the applicant hence this revision deserves to be allowed.12. for the foregoing reasons, this revision is allowed, impugned order passed by the special judge is set aside. he is directed to forward the applicant and the record of the proceedings against him to competent authority having jurisdiction under the juvenile justice (care & protection of children) act, 2000, for holding inquiry according to law.

Judgment:
ORDER

K.S. Chauhan, J.

1. This criminal revision under Section 397/401 of the Code of Criminal Procedure has been preferred being aggrieved by the order dated 1-6-2007 passed by Special Judge, Damoh in S.T. No. 83/2006, whereby the application filed by applicant for treating him juvenile has been rejected.

2. The brief facts of the case are that the applicant is facing trial for the offences under Section 302 of Indian Penal Code and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In this case, the applicant filed an application on 27-1-2007 on the ground that on the date of incident he was below 18 years of age, therefore, he be treated juvenile. The reply was filed by the prosecution mainly contending that the objection ought to have been taken at the earliest opportunity available and by passage of time he has attained the majority. The Trial Court directed to hold the inquiry and after recording of the evidence and hearing the parties came to the conclusion that on the date of incident the age of the applicant was 17 years 8 months and 26 days but held that as the applicant has crossed the age of 18 years when an application was filed and the offence was also under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 the application was rejected. Being aggrieved by that order the instant revision has been filed on the grounds mentioned in the memo of revision.

3. Shri Pradeep Naveriya, learned Counsel for the applicant submitted that the applicant was below 18 years of age on the date of incident, therefore, the applicant be treated as juvenile. The Trial Court has erroneously rejected the application which deserves to be set aside.

4. On the contrary, Shri Vikram Singh, learned Panel Lawyer appearing on behalf of respondent/State supported the impugned order mainly contending that applicant has attained majority during the pendency of the case, hence his trial by Sessions Court is justified.

5. Considered the rival contentions raised by the learned Counsel for the parties.

6. On perusal of record it reveals that the incident is of 27-9-2006. The appellant was arrested on 28-9-2006. In arrest memo his age was shown as 19 years. After completing the investigation the charge-sheet was filed in the Court of CJM who committed the case to the Sessions Court for trial. Since the applicant was poor and unable to engage a Counsel, therefore, the Trial Court provided him a Counsel from the Legal Aid. Shri T.R. Vyas, Advocate filed Vakalatnama on 11-1-2007 on behalf of the applicant. The case was fixed for arguments on 27-1-2007. On this date the Counsel for the applicant filed an application on the ground that the applicant was below 18 years of age on the date of incident, therefore, he may be treated juvenile. On 3-2-2007 the prosecution submitted the reply and opposed the application. The Court directed to make the inquiry in the matter. Two witnesses namely Devidayal and Ramkishan Yadav were examined on behalf of the applicant and Dr. R.K. Rawat who conducted ossification test was examined on behalf of prosecution. Devidayal who is the father of applicant Ballu @ Balram deposed before the Court that the dale of birth of his son Balram is 1-1-1989. He filed the photocopy of the mark-sheet (Exh. C-1). Ramkishan Yadav, Headmaster of the concerned school deposed that according to the admission register the date of birth of applicant is 1-1-1989 which has been entered by him. Thus, by this evidence applicant tried to establish that he was below 18 years of age on the date of incident.

7. Dr. R.K. Rawat who medically examined the applicant and also conducted his ossification test arrived at the conclusion that the age of applicant is 19 years or above. However, he admitted that there may be variation of two years . He has submitted report (Exh. C-2) in this regard.

8. After appreciating the entire evidence Trial Court found that on the date of incident the age of the applicant was 17 years 8 months and 26 days. Thus, it is apparent that the applicant was below 18 years of age on the date of incident.

9. In the case of Pratap Singh v. State of Jharkhand and Anr. : AIR 2005 SC 2731, the Apex Court held thus:

10. Thus, the whole object of the Act is to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles. It is a beneficial legislation aimed at making available the benefit of the Act to the neglected or delinquent juveniles. It is settled law that the interpretation of the statute of beneficial legislation must be to advance the cause of legislation for the benefit of whom it is made and not to frustrate the intendment of the legislation.

12. Clause (1) of Section 2 of the 2000 Act defines 'juvenile in conflict with law' as meaning a juvenile who is alleged to have committed an offence. The notable distinction between the definitions of the 1986 Act and the 2000 Act is that in the 1986 Act 'juvenile in conflict with law' is absent. The definition of delinquent juvenile in the 1986 Act as noticed above is referable to an offence said to have been committed by him. It is the date of offence that he was in conflict with law. When a juvenile is produced before the Competent Authority and/or Court he has not committed an offence on that date, but he was brought before the authority for the alleged offence which he has been found to have committed. In our view, therefore, what was implicit in the 1986 Act has been made explicit in the 2000 Act.

The reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court. (Para 37)

10. In the case of Rajinder Chandra v. State of Chhattisgarh and Anr. 2002 SCC (Cri) 333, the Apex Court held thus:

5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das v. State of Bihar, this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper technical approach should not be a adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case.

11. It is apparent that the applicant was below 18 years of age on the day of incident. Thus, he was juvenile. He was not in a position to engage the Counsel. An Advocate was provided on the State expenses. The learned Counsel of the applicant filed an application for treating applicant as juvenile at the earliest possible opportunity. There is no fault on the part of the applicant to protract the trial or delay the matter, therefore, he requires to be dealt with by the Juvenile Justice Board and his trial by the Sessions Court is not justified. The Trial Court has committed an illegality in rejecting the application filed by the applicant hence this revision deserves to be allowed.

12. For the foregoing reasons, this revision is allowed, impugned order passed by the Special Judge is set aside. He is directed to forward the applicant and the record of the proceedings against him to Competent Authority having jurisdiction under the Juvenile Justice (Care & Protection of Children) Act, 2000, for holding inquiry according to law.