# Ali Hasan v. State of U.P

- **Citation:** (2023) 10 ILRA 94
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-20
- **Case number:** Criminal Appeal No. 921 of 1981
- **Bench:** Rajan Roy, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ali-hasan-v-state-of-u-p-49363
- **Pages:** 7

## Headnote

Government
Advocate,
Anurag
Singh
Chauhan, Arun Kumar Singh, N. Mohan

Criminal Law - Juvenile Justice (Care and
Protection of Children) Act, 2015 - Sections
8, 9 & 25 - Criminal Procedure Code, 1973 -
Sections 374(2) & 391 - Claim of Juvenility
- Appellate Jurisdiction - Inquiry into
Juvenility - Role of Juvenile Justice Board
- The appellant, Abdul Wahid @ Channan, filed
an application (C.M. Application No. 46349 of
2017) claiming juvenility under the Juvenile
Justice (Care and Protection of Children) Act,
2015, in a criminal appeal (No. 921 of 1981)
before the High Court under Section 374(2)
Cr.P.C.

Held: (1) The application, though cited under
Section 7 of the Juvenile Justice Act, 2000, was
treated as one under Section 9(2) of the
Juvenile Justice Act, 2015, as a wrong provision
citation is not fatal. (2) Section 9(2) allows a
claim of juvenility to be raised before any court,
10 All. Ali Hasan Vs. State of U.P.
95
including appellate courts, at any stage, even
after case disposal, and requires the court to
conduct an inquiry to determine the age of the
claimant, excluding affidavits as evidence. (3)
The term "court" in Section 9(2) refers to a
court with criminal jurisdiction, not a civil court
as defined under Section 2(23) of the Act, which
pertains to adoption and guardianship matters.
(4) Section 8(1) grants exclusive jurisdiction to
the Juvenile Justice Board for proceedings
involving children in conflict with the law, but
Section 8(2) allows the High Court and
Children's Court to exercise these powers in
appeals, revisions, or otherwise, and Section
9(2) mandates courts other than the Board to
determine juvenility claims. (5) Since no
juvenility
claim
was
pending
on
the
commencement of the 2015 Act (15.01.2016),
Section
25
(continuation
of
pending
proceedings) did not apply. (6) The High Court,
exercising appellate powers under Section
374(2)
Cr.P.C.,
could
not
delegate
the
determination of juvenility to the Juvenile
Justice Board but could direct the Board to
collect evidence under Section 391 Cr.P.C. for
the court to decide the claim. (7) The Juvenile
Justice Board, Sultanpur, was directed to
conduct an inquiry, take evidence on the
juvenility claim of Abdul Wahid @ Channan, and
submit it to the High Court by 28.11.2023 for
final determination under Section 9(2). (8) The
court emphasized that the determination of
juvenility rests with the appellate court, not
the Board, ensuring compliance with the
Juvenile Justice Act, 2015.

## Text

94 INDIAN LAW REPORTS ALLAHABAD SERIES
prove the mandatory compliance of Section
50 N.D.P.S. Act. In absence of compliance
of mandatory provision of Section 50
N.D.P.S Act, the prosecution case, based on
testimony of police personnel i.e. Constable
Ram Murti Prajapati (P.W.-1), Station
House Officer S.P. Gupta (P.W.-2) whose
statements are not wholly reliable, cannot
be held as proved beyond reasonable doubt
in view of the other illegalities and material
irregularity committed by P.W.-1 and P.W.-
2 as discussed above.

24. Thus this Court is of the view that
prosecution has miserably failed to prove
its case beyond reasonable doubt against
the appellant. The trial Court has not
properly discussed the evidence produced
by the prosecution and has passed the
impugned judgment and order against the
settled
principle
of
law
including
provisions of N.D.P.S. Act. This Court,
therefore, unable to uphold the conviction
and sentence of the appellant. The appellant
is entitled to be acquitted. The impugned
judgment and order is liable to be set aside
and accordingly, appeal is liable to be
allowed.

25. In view of the above, impugned
judgment and order dated 18.01.2005 /
24.01.2005 passed by learned Additional
District & Sessions Judge (F.T.C. - III), Court
No.12, Sultanpur, convicting the appellant in
Criminal Case No.8/2004, under Section 8/21
of N.D.P.S. Act, Police Station Jagdishpur,
District Sultanpur, is set aside and reversed
and accused/appellant, namely, Yusuf is
acquitted of the charges levelled against him.
Consequently, the appeal is allowed. His
personal bond and surety bonds are canceled
and sureties are discharged.

26. Let a copy of this judgment
alongwith the lower court record be sent
immediately to the Trial Court concerned for
necessary compliance.

27. No order as to the costs.
----------
(2023) 10 ILRA 94
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.09.2023

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Criminal Appeal No. 921 of 1981

Ali Hasan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
S.C. Shukla, Arshad Ahsan Siddiqui, Arun
Sinha, G. Saran, S.B. Mathur, V. Sharotria,
Vivek Tripathi

Counsel for the Respondent:
Government
Advocate,
Anurag
Singh
Chauhan, Arun Kumar Singh, N. Mohan

Criminal Law - Juvenile Justice (Care and
Protection of Children) Act, 2015 - Sections
8, 9 & 25 - Criminal Procedure Code, 1973 -
Sections 374(2) & 391 - Claim of Juvenility
- Appellate Jurisdiction - Inquiry into
Juvenility - Role of Juvenile Justice Board
- The appellant, Abdul Wahid @ Channan, filed
an application (C.M. Application No. 46349 of
2017) claiming juvenility under the Juvenile
Justice (Care and Protection of Children) Act,
2015, in a criminal appeal (No. 921 of 1981)
before the High Court under Section 374(2)
Cr.P.C.

Held: (1) The application, though cited under
Section 7 of the Juvenile Justice Act, 2000, was
treated as one under Section 9(2) of the
Juvenile Justice Act, 2015, as a wrong provision
citation is not fatal. (2) Section 9(2) allows a
claim of juvenility to be raised before any court,
10 All. Ali Hasan Vs. State of U.P.
95
including appellate courts, at any stage, even
after case disposal, and requires the court to
conduct an inquiry to determine the age of the
claimant, excluding affidavits as evidence. (3)
The term "court" in Section 9(2) refers to a
court with criminal jurisdiction, not a civil court
as defined under Section 2(23) of the Act, which
pertains to adoption and guardianship matters.
(4) Section 8(1) grants exclusive jurisdiction to
the Juvenile Justice Board for proceedings
involving children in conflict with the law, but
Section 8(2) allows the High Court and
Children's Court to exercise these powers in
appeals, revisions, or otherwise, and Section
9(2) mandates courts other than the Board to
determine juvenility claims. (5) Since no
juvenility
claim
was
pending
on
the
commencement of the 2015 Act (15.01.2016),
Section
25
(continuation
of
pending
proceedings) did not apply. (6) The High Court,
exercising appellate powers under Section
374(2)
Cr.P.C.,
could
not
delegate
the
determination of juvenility to the Juvenile
Justice Board but could direct the Board to
collect evidence under Section 391 Cr.P.C. for
the court to decide the claim. (7) The Juvenile
Justice Board, Sultanpur, was directed to
conduct an inquiry, take evidence on the
juvenility claim of Abdul Wahid @ Channan, and
submit it to the High Court by 28.11.2023 for
final determination under Section 9(2). (8) The
court emphasized that the determination of
juvenility rests with the appellate court, not
the Board, ensuring compliance with the
Juvenile Justice Act, 2015.

(Delivered by Hon'ble Rajan Roy, J.)

(C.M. Application No.46349 of
2017)

1. Heard.

2. This is an application for
declaring
applicant/
appellant
no.6,
namely, Abdul Wahid @ Channan as
juvenile. Merely because, the application
is said to have been moved under Section
7 of the Juvenile Justice Act (Care and
Protection of Children) Act, 2000 by
itself cannot be a ground of rejecting the
application as mentioning of a wrong
provision by itself will not be fatal. The
application is accordingly treated as one
under Section 9(2) of the Juvenile Justice
(Care and Protection of Children) Act,
2015.

3. We have perused Section 9 of the
Juvenile Justice Act, 2015 which reads 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 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
96 INDIAN LAW REPORTS ALLAHABAD SERIES
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 persons claim of being a
child is being inquired into, such person
may be placed, in the intervening period in
a place of safety."

4. We have also perused Section 25 of
the Juvenile Justice Act, 2015 which reads
as under:-

'"Section 25. Special provision in
respect of pending cases.

Notwithstanding
anything
contained in this Act, all proceedings in
respect of a child alleged or found to be in
conflict with law pending before any Board
or court on the date of commencement of
this Act, shall be continued in that Board or
court as if this Act had not been enacted."

5. As regards Section 25 of the Act,
2015, on the date of coming into force of
the Act i.e. on 15.01.2016, no claim of
juvenility by applicant/ appellant no.6,
namely, Abdul Wahid @ Channan was
pending before the Board or this Court.

6. When we peruse Section (9) of the
Act, 2015, we find, firstly, that as per subSection (1) of Section 9 of the said Act,
when a Magistrate, not empowered to
exercise the powers of the Board under the
said 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. In the case at hand,
sub-Section (1) of Section 9 of the said Act
does not apply as we are seized with the
matter at appellate stage under Section
374(2) Cr.P.C.

7. In this context, sub-Section (2) of
Section 9 of the said Act is relevant which
provides that 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. The word 'court' used in subSection (2) of Section 9 has to be
understood and applied as a reference to a
court having criminal jurisdiction where
proceedings are pending as in this case
before us under Section 374 (2) Cr.P.C.
arising out of judgment of the trial court.
The word 'court' used therein cannot be
read and understood in the light of the
definition of the term 'court' given in
Section 2 (23) of the Juvenile Justice Act,
2015, according to which, the said term
means a civil court, which has jurisdiction
in matters of adoption and guardianship
and may include the District Court, Family
Court and City Civil Courts. The reason is
the opening sentence of Section 2 which
says - "In this Act, unless the context
otherwise requires" and thereafter, the
definitions including clause-(23) of Section
10 All. Ali Hasan Vs. State of U.P.
97
2 have been given. Section 9 is a context
different from what is referred in clause -
(23) of Section 2 as offences are not tried
by civil court which has jurisdiction in
matters of adoption and guardianship.
Therefore, the word 'court' used in subSection (2) of Section 9 has necessarily to
be understood as a court having criminal
jurisdiction to try such an offence and it
cannot possibly mean a civil court which
has jurisdiction in matters of adoption and
guardianship as defined under Section
2(23) of the Juvenile Justice Act, 2015 as
the question of an offence being tried is
not the subject matter of adoption or
guardianship.

8. We further notice that as per subSection (2) of Section 9, reference is to a
court other than a Board where the
claim of juvenility is raised or the said
court forms an opinion as referred therein
that the person was a child on the date of
commission of the offence. Therefore, it
necessarily refers to a court other than a
board. Board is defined in the Juvenile
Justice Act, 2015 as Juvenile Justice
Board constituted under Section 4. Thus,
the scheme of Section 9 is very clear.
Under sub-Section (1) thereof, it is
Board which is empowered to undertake
proceedings with reference to a juvenile.
However, under sub-Section (2), it is the
court other than a Board which has to
take a call so far as juvenility of the
offender is concerned.

9. We may in this context consider
Section 8 of the Act 2015 relating to
powers, functions and responsibilities of
the Board. The said provision reads as
under:

"8.
Powers,
functions
and
responsibilities of the Board. - (1)
Notwithstanding anything contained in
any other law for the time being in force
but save as otherwise expressly provided
in this Act, the Board constituted for any
district shall have the power to deal
exclusively with all the proceedings
under this Act, relating to children in
conflict with law, in the area of
jurisdiction of such Board.

(2) The powers conferred on
the Board by or under this Act may also
be exercised by the High Court and the
Children's Court, when the proceedings
come before them under section 19 or in
appeal, revision or otherwise.

(3)
The
functions
and
responsibilities
of
the
Board
shall
include--

(a)
ensuring
the
informed
participation of the child and the parent
or guardian, in every step of the process;

(b) ensuring that the child's
rights are protected throughout the
process
of
apprehending
the
child,
inquiry, aftercare and rehabilitation;

(c) ensuring availability of legal
aid for the child through the legal
services institutions;

(d)
wherever
necessary
the
Board shall provide an interpreter or
translator, having such qualifications,
experience, and on payment of such fees as
may be prescribed, to the child if he fails to
understand the language used in the
proceedings;

(e)
directing
the
Probation
Officer, or in case a Probation Officer is
not available to the Child Welfare Officer
or a social worker, to undertake a social
investigation into the case and submit a
social investigation report within a period
of fifteen days from the date of first
production before the Board to ascertain
the circumstances in which the alleged
offence was committed;
98 INDIAN LAW REPORTS ALLAHABAD SERIES

(f) adjudicate and dispose of
cases of children in conflict with law in
accordance with the process of inquiry
specified in section 14;

(g) transferring to the Committee,
matters concerning the child alleged to be
in conflict with law, stated to be in need of
care and protection at any stage, thereby
recognizing that a child in conflict with law
can also be a child in need of care
simultaneously and there is a need for the
Committee and the Board to be both
involved;

(h) disposing of the matter and
passing a final order that includes an
individual care plan for the child's
rehabilitation, including follow up by the
Probation Officer or the District Child
Protection Unit or a member of a nongovernmental organisation, as may be
required;

(i)
conducting
inquiry
for
declaring fit persons regarding care of
children in conflict with law;

(j) conducting at least one
inspection visit every month of residential
facilities for children in conflict with law
and recommend action for improvement in
quality of services to the District Child
Protection Unit and the State Government;

(k)
order
the
police
for
registration of first information report for
offences committed against any child in
conflict with law, under this Act or any
other law for the time being in force, on a
complaint made in this regard;

(l)
order
the
police
for
registration of first information report for
offences committed against any child in
need of care and protection, under this Act
or any other law for the time being in force,
on a written complaint by a Committee in
this regard;

(m) conducting regular inspection
of jails meant for adults to check if any
child is lodged in such jails and take
immediate measures for transfer of 1[that
child to an observation home or place of
safety, as the case may be]; and

(n) any other function as may be
prescribed. "

Sub-Section (1) of Section 8 of the Act
2015 very clearly provides that though the
powers
vested
on
the
Board
are
notwithstanding contained in any other law
for the time being in force, but, they are
subject
to
other
express
provision
otherwise in the Act 2015. Thus, it is
evident from the words - "but save as
otherwise expressly provided in this act"
that Section 8 is subject to Section 9,
especially sub-Section (2) thereof. SubSection (2) further clarifies scope of the
said provision of Section 8 by providing
that powers conferred on the Board by or
under the Act 2015 may also be exercised
by the High Court and the Children Court's
when the proceedings come before them
under Section 19 (Children Court) or in
appeal, revision or otherwise. Thus, clearly
there is no conflict between Section 8 and
Section 9 of the Act and on a conjoint
reading of both the provisions also, it is
evident that Legislative mandate as per
Section 9(2) is for the Court other than a
Board to decide the claim of juvenility, if
such claim is raised before such Court. The
exclusive jurisdiction given to the 'Board'
under Section 8(1) of the Act, 2015 is
qualified and circumscribed by sub-Section
2 thereof which empowers the High Court
and Children Court to examine all the
powers conferred upon the Board by or
under the Act, 2015.

10. In view of the aforesaid
discussion especially in view of the proviso
to sub-Section (2) to Section 9, a claim of
juvenility can be raised before a court other
10 All. Ali Hasan Vs. State of U.P.
99
than the Board and it shall be recognized at
any stage even after final disposal of the
case and such a claim shall be determined
in accordance with the provisions contained
in Juvenile Justice Act, 2015 and the Rules
made thereunder, even if, the person has
ceased to be a child on or before the
commencement of the Act.

11. Now, from the said provision what
comes out is that it is this Court, exercising
its powers under Section 374 (2) Cr.P.C.
and
other
analogous
and
ancillary
provisions of Cr.P.C., which is required to
determine juvenility of the applicant/
appellant no.6 as claimed by him in these
appellate proceedings and this cannot be
decided/ determined by the Board under the
Juvenile Justice Act, 2015. As juvenility is
being claimed in appellate proceedings
before this Court, Section 9(1) does not
come into play instead Section 9(2) applies.

12. In view of Section 9 of subSection (2), we cannot send the matter to
the Board for determination of juvenility as
such determination of the juvenility has to
be done by the court where the proceedings
are pending, but, this does not preclude us
in exercising our appellate powers under
the Code of Criminal Procedure to send the
matter for limited inquiry in the form of
taking of evidence by the 'Board' to
facilitate a determination of juvenility by
this Court.

13. We are of the opinion that the
requirement under Section 9(2) of such a
decision by this Court is coupled with
powers and jurisdiction vested in this Court
as a court of appeal under Section 374(2)
Cr.P.C. read with Section 391 Cr.P.C., as,
for the purposes of deciding this juvenility,
we will have to take evidence in addition to
what has already been led before the trial
court for the reason that before the trial
court neither such juvenility was claimed
nor any evidence was led, therefore, such
evidence will be in the nature of additional
evidence as such the provision of Section
391 Cr.P.C. would be applicable for
exercising our jurisdiction under Section 9
for the reasons given hereinabove. Section
391 Cr.P.C. reads as under:-

"391. Appellate Court may take
further evidence or direct it to be taken.-

(1) In dealing with any appeal
under this Chapter, the Appellate Court, if
it
thinks
additional
evidence
to
be
necessary, shall record its reasons and may
either take such evidence itself, or direct it
to be taken by a Magistrate or, when the
Appellate Court is a High Court, by a
Court of Session or a Magistrate.

(2) When the additional evidence
is taken by the Court of Session or the
Magistrate, it or he shall certify such
evidence to the Appellate Court, and such
Court shall thereupon proceed to dispose of
the appeal.

(3) The accused or his pleader
shall have the right to be present when the
additional evidence is taken.

(4) The taking of evidence under
this section shall be subject to the
provisions of Chapter XXIII, as if it were an
inquiry."

14. For reasons of convenience and as
we are bound to consider the claim of
juvenility of the appellant no.6 as per
Section 9(2) of the Act, 2015 for which
evidence is required to be collected,
therefore, we exercise our power under
Section 391 Cr.P.C. read with Section 9(2)
of the Act, 2015 and refer the application of
appellant no.6 to the Juvenile Justice
Board, Sultanpur which is headed by a
Magistrate for the purposes of taking
100 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence on the question of juvenility as
claimed by the applicant/ appellant no.6 but
not for determining the said juvenility
which will have to be done by this Court
under Section 9(2) of the Juvenile Justice
Act, 2015 after the evidence has been taken
by the Board and sent to this Court.

15. We, accordingly, direct the
Juvenile Justice Board, Sultanpur to
undertake the aforesaid exercise as per law
by conducting an inquiry in the form of
taking evidence and submit it to this Court
by the next date.

16. For the aforesaid purpose, the
application of appellant/ applicant no.6
shall be treated as one submitted under
Section 9 of the Juvenile Justice Act,
2015.

17. The matter shall now come up
for hearing on 28.11.2023.

18. A copy of this application shall
be transmitted to the Juvenile Justice
Board, Sultanpur along with the details of
the informant and the accused.

19. Senior Registrar of this Court to
do the needful in this regard.
----------
(2023) 10 ILRA 100
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.10.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1067 of 2010

Nankau & Anr. ...Appellants
Versus
State of U.P. ...Respondent
Counsel for the Appellants:
Pradeep Kumar Singh, Anshubhan Singh,
Manish Bajpai

Counsel for the Respondent:
Govt. Advocate, Anil Pratap Singh, Sunil
Kumar Singh

Criminal Law - Indian Penal Code, 1860
-
Sections
323,
504
&
506(2)
-
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(1)(x) - Criminal Procedure
Code,
1973
-
Section
374(2)
-
Interested Witnesses - Presumption of
Innocence - Burden of Proof - Acquittal
- The appellants, Nankau and another,
challenged the conviction and sentencing
dated 26.03.2010 by the Additional Sessions
Judge, Lucknow, in Sessions Trial No. 1216 of
1999 for offenses under Sections 323, 504,
506(2) IPC and Section 3(1)(x) of the SC/ST
Act, arising from Case Crime No. 77/1998,
Police Station Thakurganj, Lucknow.

Held: (1) The appeal was allowed, and the
convictions and sentences were set aside,
acquitting the appellants. (2) The prosecution
failed to prove the guilt of the appellants
beyond reasonable doubt, as the testimonies
of PW-1 (Ram Dulare, complainant), PW-2
(Shyam Lal), and PW-3 (Mohd. Hashim), all
interested witnesses due to their proximity to
the complainant, were deemed unreliable and
tutored. (3) The trial court erred in relying on
these witnesses without adequately separating
credible evidence from unreliable portions,
ignoring the principle of falsus in uno falsus in
omnibus not applying in India, as per Sucha
Singh Vs St. of Punj.. (4) The witnesses'
interested nature, coupled with admitted enmity
between the parties over a prior court case,
raised doubts about their credibility, and no
independent
witnesses
were
examined
to
corroborate the prosecution story. (5) The
medical evidence by PW-6 (Dr. M.N. Siddiqui)
indicated simple, fresh injuries caused by
scratches, but no proper explanation of these
injuries was provided, further weakening the
prosecution case. (6) The trial court's findings
were based on conjectures, overlooking material