# Amresh Kumar and another v. State of U.P

- **Citation:** (2007) 3 ILRA 722
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-25
- **Case number:** Criminal Misc. Application No. 11905 of 2006
- **Bench:** R.K. Rastogi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amresh-kumar-and-another-v-state-of-u-p-41112
- **Pages:** 3

## Headnote

Children) Rule 2004-Section 22-claim of
juvenile on the date of occurrenceeducation
certificate
disbelievedapplication for medical examination of
age-rejected on the ground of belated
stage-held-illegal this plea can be raised
even
at
appellate
age-trail
court
committed apparent error.

Held: Para 4

It is to be seen that it has been laid
down by Hon'ble Apex court in Bhola
Bhagat and others Vs. State of Bihar:
1997(35) ACC 835(S.C.) that the plea
that the accused was juvenile can not be
rejected on the ground that this plea has
been taken at a belated stage, and it was
held that such a plea can be raised
during pendency of the appeal also . As
such in the present case the learned
Addl. Sessions Judge has committed a
legal error by not allowing the prayer for
medical examination of the applicants on
the ground that this prayer has been
made at a belated stage.
Case law discussed:
1997 (35) ACC-835 (S.C.)
3 All] Amresh Kumar and another V. State of U.P.
723

## Text

722 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
9. For the reasons aforesaid I am of
he considered opinion that no misconduct
has been committed by the petitioner by
merely showing his intent to commit
suicide by giving notice of 'Atmdah'. He
cannot be removed from service by the
respondents also for the reason that not
only the impugned order is without any
application of mind but also because his
dismissal appears to be against all
cannons of principles of natural justice as
the petitioner was not given any copy of
the
enquiry
report
for
effectively
challenging it in appeal which amounts to
denial of reasonable opportunity of
hearing before awarding punishment. A
intention to commit suicide by 'Atmdah' is
not an offence unless it is put to an action.
If put to action and had the petitioner
succeeded in his intention, he would have
been beyond reprieve or any punishment
in the World. Had he not only than he
even liable to punishment in this mortal
world.

10. For the reasons stated above, the
writ petition is allowed with the direction
to the respondents to reinstate the
petitioner forthwith in service with
continuity of service within a period of
one month from the date of production of
certified copy of this order and pay his all
legal dues and benefits, which the
petitioner would have been entitled to had
his services not been illegally terminated
by the respondents.
Petition Allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.09.2007

BEFORE
THE HON'BLE R.K. RASTOGI, J.

Criminal Misc. Application No. 11905 of
2006

Amresh Kumar and another ....Applicants
Versus
State of U.P.

...Opposite Party

Counsel for the Applicants:
Sri B.N. Singh
Sri Kunwar Anand Singh

Counsel for the Opposite Party:
A.G.A.

Juvenile Justice (Care & Protection of
Children) Rule 2004-Section 22-claim of
juvenile on the date of occurrenceeducation
certificate
disbelievedapplication for medical examination of
age-rejected on the ground of belated
stage-held-illegal this plea can be raised
even
at
appellate
age-trail
court
committed apparent error.

Held: Para 4

It is to be seen that it has been laid
down by Hon'ble Apex court in Bhola
Bhagat and others Vs. State of Bihar:
1997(35) ACC 835(S.C.) that the plea
that the accused was juvenile can not be
rejected on the ground that this plea has
been taken at a belated stage, and it was
held that such a plea can be raised
during pendency of the appeal also . As
such in the present case the learned
Addl. Sessions Judge has committed a
legal error by not allowing the prayer for
medical examination of the applicants on
the ground that this prayer has been
made at a belated stage.
Case law discussed:
1997 (35) ACC-835 (S.C.)
3 All] Amresh Kumar and another V. State of U.P.
723
(Delivered by Hon'ble R.K. Rastogi, J.)

1. This is an application under
section 482 Cr.P.C. to set aside the order
dated 29.4.2006 and 16.9.06 passed by
Addl. Sessions Judge, Court no. 6 Kanpur
Dehat in Sessions Trial No. 286 of 2002,
State Vs. Kuldeep and others under
section 376 I.P.C., P.S. Rura District
Kanpur Dehat.

2. The facts relevant for disposal of
this application are that the applicants are
accused in the aforesaid case under
section 376 I.P.C. They moved an
application before the trial court stating
that they were juvenile on the date of the
incident and they also filed some
documentary
evidence
of
their
educational
record
for
proving
the
allegation
of
juvenileship
but
that
evidence was not found to be reliable by
the court concerned. Thereafter they made
a prayer that they should be got medically
examined
for
ascertaining
the
fact
whether they were juvenile on the date of
the incident or not. This prayer was also
rejected by the trial court on the ground
that this prayer had been made at a
belated
stage
only
to
delay
the
proceedings of the case and so the prayer
for medical examination of the applicants
was also rejected. Aggrieved with that
order the applicants have filed this
application under section 482 Cr.P.C.

3. I have heard the learned counsel
for the applicants as well as the learned
A.G.A. for the State.

4. It is to be seen that it has been laid
down by Hon'ble Apex court in Bhola
Bhagat and others Vs. State of Bihar:
1997(35) ACC 835(S.C.) that the plea that
the accused was juvenile can not be
rejected on the ground that this plea has
been taken at a belated stage, and it was
held that such a plea can be raised during
pendency of the appeal also. As such in
the present case the learned Addl.
Sessions Judge has committed a legal
error by not allowing the prayer for
medical examination of the applicants on
the ground that this prayer has been made
at a belated stage.

5. It is also to be seen that under
Rule 22 of U.P. Juvenile Justice (Care &
Protection of Children) Rule, 2004, birth
certificate of the child or School record
regarding date of birth has first to be
considered for ascertaining his age and if
the above evidence is not available or is
found to be not trustworthy, then the
medical evidence regarding age is to be
considered. Hence in the present case,
where the educational records filed by the
applicants were found to be unreliable,
the proper course for the trial court was to
get the applicants medically examined
and refusal to get the applicants medically
examined for ascertainment of their actual
age is erroneous.

6. Now, I take up the impugned
orders dated 29.4.06 and 16.9.06. The
order-dated 29.4.06 which is on other
documentary evidence regarding age of
the applicants does not suffer from any
illegality and so it is maintained. So far as
order dated 16.9.06 is concerned, that part
of it whereby co accused Mukesh has
been disbelieved to be a juvenile is
maintained, and that part of it whereby the
other documentary evidence regarding
age of the applicants has been declared is
also maintained, but its that portion
whereby their prayer for their medical
examination for ascertainment of the age
has been rejected is set aside and the
724 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
present application under section 482 Cr.
P.C. deserves to be allowed to this extent
only.

7. The application under section 482
Cr.P.C. is therefore partly allowed. The
order 16.9.06 passed by Addl. Sessions
Judge, Court no. 6 Kanpur Dehat in
Sessions Trial No. 286 of 2002, State Vs.
Kuldeep and others under section 376
I.P.C., P.S. Rura District Kanpur Dehat is
partly set aside only to the extent pointed
out above. Learned Addl. Sessions Judge
shall now get the applicants medically
examined and after receipt of the report of
the C.M.O., shall provide an opportunity
to both the parties to file objections, if any
, against the report of the C.M.O. and
thereafter he would pass suitable orders
regarding so called juvenileship of the
applicants on the date of the incident.
Application partly Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2007

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE K.N. OJHA, J.

Criminal Misc. Writ Petition No. 12339 of
2007

Khan Saulat Hanif

...Petitioner
Versus
State of U.P. and others ...Respondents
Counsel for the Petitioner:
Sri Satish Trivedi
Sri S.M.A. Kazmi
Sri D.S. Misra
Sri Sharique Ahmed

Counsel for the Respondents:
A.G.A.

Constitution of India-Art. 226-Quashing
F.I.R.-offence
under
section
395,397,384,506
IPC-looted
articles
recovered by Police-name of petitioner
found in the statement of witnessmalafide allegations made as petitioner a
practicing lawyer belongs to a particular
party-held-no ground for interference.

Held: Para 16

In this case after the registration of the
case the looted articles have been
recovered
by
the
police
and
also
statements
of
the
witnesses
were
recorded in which the name of the
petitioner has been mentioned and it
cannot be said that there is no allegation
against the petitioner to attract the
commission of cognizable offence. The
Apex Court in the case of Union Of India
Vs. B.R. Bajaj reported in (1994) 2 SCC
777 has held that at the stage of the FIR
the courts should refrain from interfering
when the FIR discloses the commission
of a cognizable offence and statutory
power of police to investigate can not be
interfered
with
in
exercise
of
the
inherent power of the court.
Case law discussed:
1992 SCC(Crl.)-426
1999 (3) SCC-259
2002 (3) SCC-89
2007 SCC (Crl.)-193

(Delivered by Hon'ble Imtiyaz Murtaza. J.)

1. This petition has been filed for
quashing of the F.I.R. registered at case
crime no.62 of 2007 under sections 395,
397, 384, 506 I.P.C. police station
Bargarh District Chitrakoot lodged by
respondent no. 4 Ramesh Chand Jain.

2. According to the allegations of
the first information report the informant
is proprietor of firm Vardhman Industrial
and Trading Corporation BKD College
Chauraha, Gwalior Road, Jhansi and deals
in the business of purchasing scrap in