# Chhotakki @ Kiran v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 3 ILRA 772
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-24
- **Case number:** Application u/s 482 No. 9839 of 2022
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhotakki-kiran-v-state-of-u-p-anr-opp-parties-49830
- **Pages:** 6

## Headnote

Civil Law - Juvenile Justice (Care and
Protection of Children) Act-Section 7A-FIR
lodged in 2000-Applicant was minor-implicatedlater got married and lived separately with her
husband-prior
to
marriage-appeared
and
enlarged on bail-summons never served upon
the Applicant- Application in 2022 moved by
Applicant claiming herself juvenile at the time of
incident-not
considered-impugned-whenever
claim of juvenility raised-Court shall make
immediate inquiry for determining the age to
conclude juvenility-claim can be raised at any
stage -even after final disposal of case or after
final order passed in an appeal-delay cannot be
ground for rejection-impugned order set aside.
Application allowed. (E-9)
List of Cases cited:

Abuzar Hossain @ Gulam Hossain Vs St. of W.
B., 2012 (10) SCC489

## Text

772 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Crime No. 462 of 2018, under
Section
3/5/8
of
Uttar
Pradesh
Prevention of Cow Slaughter Act, 1955,
Police Station Dewa, District Barabanki
is refused. There is no merit in this
application filed by the applicant under
Section 482 Cr.P.C.

19. In view of the aforesaid
submissions made by the learned counsel
for
the
parties
and
considering
the
judgments passed by Hon'ble Supreme
Court referred above, this Court finds no
merit in the present application and the
same is liable to be dismissed.

20.

Accordingly,
the
present
application under Section 482 Cr.P.C.
filed by the applicant is dismissed.
----------
(2023) 3 ILRA 772
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.01.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application u/s 482 No. 9839 of 2022

Chhotakki @ Kiran ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Arvind Kumar Verma

Counsel for the Opp. Parties:
G.A.

Civil Law - Juvenile Justice (Care and
Protection of Children) Act-Section 7A-FIR
lodged in 2000-Applicant was minor-implicatedlater got married and lived separately with her
husband-prior
to
marriage-appeared
and
enlarged on bail-summons never served upon
the Applicant- Application in 2022 moved by
Applicant claiming herself juvenile at the time of
incident-not
considered-impugned-whenever
claim of juvenility raised-Court shall make
immediate inquiry for determining the age to
conclude juvenility-claim can be raised at any
stage -even after final disposal of case or after
final order passed in an appeal-delay cannot be
ground for rejection-impugned order set aside.
Application allowed. (E-9)
List of Cases cited:

Abuzar Hossain @ Gulam Hossain Vs St. of W.
B., 2012 (10) SCC489

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Arvind Kumar Verma,
learned counsel for the applicant, Sri
Aniruddh Kumar Singh, learned AGA-I for
the State.

2. Since pure legal question is
involved in this matter, therefore the notice
to the opposite party no. 2 is hereby
dispensed with.

3. By means of the instant application,
the applicant has prayed for quashing of the
impugned order of non-bailable warrant
dated 27.09.2022 and impugned order
dated 07.12.2022, passed by the learned
Chief Judicial Magistrate, Sitapur, in
Criminal Case No. 3095 of 2001, arising
out of case crime no. 172 of 2001, under
Sections 498A, 304B of the IPC and
Sections 3/4 of the Dowry Prohibition Act,
relating to Police Station Pisawan, District
Sitapur.

4. Factual matrix of the case is that
the applicant was minor (thirteen years of
age) at the time of alleged incident, as her
date of birth has been shown as 20.07.1988.
The opposite party no. 2, Sri Ram Chandra
3 All. Chhotakki @ Kiran Vs. State of U.P. & Anr.
773
lodged the first information report, against
the present applicant along with the other
co-accused
persons.
Thereafter,
the
investigation was conducted and the
charge-sheet was filed. After the alleged
incident, the applicant performed marriage
with one Prakash, resident of Village
Malhpur Chaubey and started living at her
matrimonial house and, thus, she could not
receive the summons and, ultimately, when
the non-bailable warrant was issued on
27.09.2022, she came to know about the
case
and,
thereafter,
approached
her
counsel, who filed an application before
Chief Judicial Magistrate, Sitapur on
14.10.2022 with a prayer that the matter
may be referred to the Juvenile Justice
Board for trial, as she was thirteen years of
age at the time of the incident. On the said
application, the Chief Judicial Magistrate,
Sitapur passed the order on 07.12.2022,
whereby, the prayer has been rejected and
order of non-bailable warrant was passed
and proclamation under Section 82 CrPC
was issued against the applicant. Thus the
applicant
assailed
the
order
dated
27.09.2022 and 07.12.2022 by way of
instant application.

5. Contention of learned counsel for
the applicant is that an FIR was lodged by
the complainant, Ram Chandra under
Section 498A, 304B of the IPC and under
Section 3/4 of the Dowry Prohibition Act at
Police Station Pisawan, District Sitapur on
04.09.2000 and the present applicant, who
was the minor on the date of said incident,
has been implicated in the present case due
to ulterior motive as the age of the
applicant on the date of incident was
thirteen years, as per her date of birth. He
submits that when this fact came into
knowledge that first information report was
lodged against the present applicant and all
the
family
members,
the
applicant
surrendered her before the court concerned
and she was granted bail by the trial court
vide order dated 08.02.2001.

6. Further submission is that the
Investigating
Officer
conducted
the
investigation and submitted the chargesheet against the family members of the
applicant in Case Crime No. 172 of 2000
and the investigation against the applicant
was kept pending but later on, under the
influence of the opposite party no. 2, the
charge-sheet was also submitted against the
applicant on 24.03.2001 assuming her to be
major, although it is apparent from the
charge-sheet that the present applicant was
about thirteen years of age as is mentioned
in the charge-sheet itself.

7. He contended that after filing of the
charge-sheet against the applicant, the
criminal case was registered as Criminal
Case No. 3095 of 2001, (State Vs. Chottaki
@ Kiran) but neither any notice nor any
summon was ever served upon the
applicant and the trial court without
ensuring the fact as to whether the summon
has been served upon the applicant or not,
started
issuing
non-bailable
warrants
against the applicant and as soon as the fact
with respect to the issuance of non-bailable
warrant came into knowledge of the
applicant, she moved an application on
14.10.2022 before the Chief Judicial
Magistrate, Sitapur and while moving the
application, the plea has been raised that
since the applicant was minor on the date
of the incident, thus, the matter may be
transferred to the Juvenile Justice Board
concerned. He added that the Chief Judicial
Magistrate, Sitapur without applying its
judicial
mind
and
without
properly
scrutinizing the materials available on
record, rejected the application of the
applicant and issued non-bailable warrant
774 INDIAN LAW REPORTS ALLAHABAD SERIES
and started the proceeding of proclamation
under Section 82 of CrPC.

8. Adding his arguments, he submits
that the learned trial court has ignored the
provisions of existing Section 7A of the
Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred as
'the Act, 2000'), as well as the fact that the
applicant was minor on the date of incident,
thus, he has committed patent illegality.

9. For reference, Section 7A of the
Act, 2000 is extracted as under:-

"7A. Procedure to be followed when
claim of juvenility is raised before any
court.?

(1) 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: Provided that a claim
of juvenility may be raised before any
court and it shall be recognised at any
stage, even after final disposal of the
case, and such claim shall be determined
in terms of the provisions contained in
this Act and the rules made thereunder,
even if the juvenile has ceased to be so on
or before the date of commencement of
this Act.

(2) If the court finds a person to be a
juvenile on the date of commission of the
offence under sub-section (1), it shall
forward the juvenile to the Board for
passing
appropriate
orders
and
the
sentence, if any, passed by a court shall be
deemed to have no effect."

10.

Referring
the
abovesaid
provisions, he submits that the trial court
did not speak even a single word regarding
determination of juvenility of the applicant,
thus, the provision regarding enquiry for
determining the juvenility has clearly been
violated. The trial court though noted the
argument of the applicant in the impugned
order that she was 13 years of age at the
time of incident but neither discussion is
there nor finding is recorded.

11. He next added that Section 49 of
the Act, 2000 deals with the presumption
and determination of the age and, thus, it
was also incumbent upon the competent
authority to enquire about the fact that
whether the alleged accused is a child
conflict with law or not.

12. He further contended that the
procedure for determination of age has
specifically been provided under Rule 12 of
the Juvenile Justice (Care and Protection of
Children) Rules, 2007. The exhaustive
rules with respect to the procedure has been
prescribed only to ensure the fact that no
juvenile should be tried with other than the
procedure prescribed in the Act, 2000 and,
thus, he submits that the trial court did not
bother to adopt the procedure which was to
be followed for determination of the age.
Lastly, he submits that since the trial court
has at the first hand denied the benefit of
juvenility to the present applicant even
after application moved by the applicant,
therefore, the trial court has not only
rejected the application of the applicant but
he has also skipped the provisions of law.

13. In support of his contention, he
has placed reliance on the judgement
rendered in the case of Abuzar Hossain @
Gulam Hossain Vs. State of West Bengal
reported in 2012 (10) SCC 489 and has
3 All. Chhotakki @ Kiran Vs. State of U.P. & Anr.
775
referred paragraph 39.1 of the abovesaid
judgement, wherein it has categorically
been held that the claim of juvenility can be
raised at any stage, even after trial is
concluded and appeal is decided.

14. Paragraph 39.1 is extracted as
under:-

"39.1 A claim of juvenility may be
raised at any stage even after final disposal
of the case. It may be raised for the first
time before this Court as well after final
disposal of the case. The delay in raising
the claim of juvenility cannot be a ground
for rejection of such claim. The claim of
juvenility can be raised in appeal even if
not pressed before the trial court and can
be raised for the first time before this Court
though not pressed before the trial court
and in appeal court."

15. Relying upon the aforesaid, he
submits that the Hon'ble Apex Court has
held that delay in raising the claim of
juvanility cannot be a ground for rejection
of such claim and the same can be raised
even at the stage of appeal, if not pressed
before the trial court.

16. Further submission is that since it
is clear from the charge-sheet as well as the
school leaving certificate, which has been
annexed as annexure no. 3 to the
application, issued by the Primary School,
Dhadhnamau, that the age of the applicant
was 13 years at the time of incident as her
date of birth is 20.07.1988 and the chargesheet also mentions the fact that the age of
the present applicant was 13 years at the
time
of
incident.
He
submits
that
undoubtedly the present applicant was
minor at the date of the alleged occurrence
and, thus, the Chief Judicial Magistrate,
Sitapur has no jurisdiction to proceed with
the trial of the applicant and the matter
should have been remitted back to the
Juvenile Justice Board concerned. He next
submits that the order passed by the Chief
Judicial Magistrate dated 07.12.2022 is
therefore unlawful and against the law
propounded by the Apex Court and thus,
the same is unsustainable.

17. On the other hand, learned
counsel appearing for the State has
controverted the contentions of the learned
counsel for the applicant and submits that
the incident has taken place in the year
2000 and it is an admitted fact that the
present applicant, after lodging of the FIR,
appeared before the trial court and she was
enlarged on bail, which itself discloses that
the criminal case was very well in the
knowledge of the applicant. He further
submits that since the correct address was
not informed to the trial court, therefore,
summons were sent on the address which
was available on record of the trial court
and in case of non-appearance, the trial
court issued non-bailable warrants and has
taken recourse of the other consequential
proceedings and when the Police somehow
could reach to the place of the present
applicant,
she,
in
the
compelling
circumstances, appeared before the trial
court, thus, it shows that the applicant was
deliberately trying to avoid the criminal
proceedings and was escaping herself since
last 20 years, due to which, the trial
proceeding has become delayed. He further
submits that the present applicant has not
come with clean hands before this Court
and she has misused the process of law and
the liberty of bail granted by the trial court.

18. Addressing the issue, learned
counsel for the State submits that since the
non-bailable warrant was issued against the
applicant and further the proceeding of
776 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 82 of CrPC was also initiated and,
therefore, once the application was filed by
the applicant, the same was dismissed,
while discussing in detail all these
circumstances and it is not understandable
that once the fact was in the knowledge of
the applicant that she was minor at the time
of the incident, why did she not seek the
benefit of the provisions of Section 7A of
the Act, 2000, uptil twenty years . Thus,
there is no illegality or perversity in the
impugned order passed by the Chief
Judicial
Magistrate,
Sitapur
and
this
application is liable to be dismissed.

19. Having heard learned counsel for
the parties and after perusal of the records,
it emerges that the First Information Report
was lodged way-back in the year 2000,
wherein,
while
lodging
the
First
Information Report under Sections 498-A,
304 B of IPC read with Section 3/4 of the
Dowry
Prohibition
Act,
the
present
applicant was implicated. Thereafter, she
got married and started living separately
with her husband although prior to her
marriage, she appeared before the trial
court and applied for bail and she was
enlarged on bail. It also reveals that the
summons were never served upon the
applicant as the postal address of the
applicant in the record of the trial court was
the parental address and the parties did not
provide the residential/postal address of the
matrimonial place of the applicant. As per
the averments of the applicant, the
proceedings of non-bailable warrant as well
as proclamation under Section 82 of CrPC
came into her knowledge, when she
appeared before the trial court and
submitted an application for declaring her
as a juvenile.

20. When this Court examined the order
of the learned trial court dated 07.12.2022
impugned in this application, it emerges that
an application dated 14.10.2022 was before
the trial court, whereby, the applicant claimed
her as a juvenile showing her age as 13 years
at the time of the incident. The trial court
though mentioned the aforesaid application
and prayer of the applicant in the order but no
finding has been recorded on the core issue of
determining the juvenility of the applicant.

21. In the present matter, the application
was filed for determination of age and for
declaring the applicant as a juvenile/child
conflict with law, but the trial court did not
consider the same and has issued nonbailable warrant and the proclamation under
Section 82 CrPC, ignoring the prayer of the
applicant.

22. This Court is not unmindful of the
provisions of law as well as the law
propounded by the Apex Court with respect
to claim of juvenility. From bare reading of
Section 7(A) of the Act, 2000, it reveals that
'Whenever' a claim of juvenility is raised
before any Court and the Court is of the
opinion that an accused was juvenile on the
date of commission of the offence, the Court
shall immediately make an inquiry taking
necessary evidence for determining the age of
person, to come to the conclusion that as to
whether such an accused is a juvenile or not.'

23. Section 7(A) of the Act, 2000,
emphasise that the claim of juvenility can be
raised at any stage even after final disposal of
the case before the trial court or after the final
order passed in an appeal. It has also been
settled that delay in raising the claim of
juvenility cannot be a ground for rejection of
the claim of juvenility.

24. After the aforesaid discussion it is
borne out that intent of the legislative is
very clear from bare reading of the
3 All. Ruchi Mittal @ Smt. Ruchi Garg Vs. State of U.P. & Ors.
777
provisions of Section 7(A) of the Act, 2007
as it mentions that, 'whenever a claim of
juvenility is raised', and that clearly shows
that an absolute opportunity has been
accorded to such an accused to set a claim
of his or her being juvenile at the time of
the incident and further that can be raised
before 'any Court' which indicates that the
same can be raised even at the Court of
appeal as well as the trial court. The claim
of the juvenility can be adjudicated in an
appeal, even if, the same was not
considered before the trial court.

25. So far as the present case is
concerned, the matter is at the stage of trial,
though the same is of year 2000 and after
about delay of 22 years, the applicant is
claiming her to be a juvenile but as per the
provisions of law, delay cannot be a ground
for entertaining such claims but the
Magistrate while passing the impugned
order,
prima
facie,
seems
to
be
unreasonable and ignorant of the provisions
of law as well as the law propounded by the
Apex Court with respect to deciding the
claim of juvenility. Further there seems to
be no lapse or lacuna on the part of the
applicant while submitting an application
on 14.10.2022.

26. Consequently, the impugned order
dated 07.12.2022 passed by the trial court
in Case No. 3095 of 2001 arising out of
Case Crime No. 172 of 2001, is hereby set
aside.

27. The matter is remitted back to the
trial court concerned.

28. The applicant is at liberty to file a
fresh application within a period of 30 days
from the date of receiving of certified copy
of this order, before the trial Court and if
such an application is filed, the same shall
be decided within further period of 45 days
strictly in accordance with law.

29. For the aforesaid period, the nonbailable
warrant
as
well
as
the
proclamation under Section 82 of CrPC
shall remain stayed.

30. With the aforesaid directions and
observations, the application is hereby
allowed.
----------
(2023) 3 ILRA 777
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 26037 of 2022

Ruchi Mittal @ Smt. Ruchi Garg
 ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Sunil Kumar

Counsel for the Opp. Parties:
G.A., Sri Bhanu Prakash Singh, Sri Vijay Prakash
Mishra

Criminal Law - Code of Criminal Procedure
- Section 156 (3) & 397-Application u/s 482
against order u/s 156(3) treating application as
complaint-Not
maintainable-Revision
under
Section 397 Cr.P.C. is proper remedy.

Application dismissed. (E-9)

List of Cases cited:

1. Atul Pandey @ Param Pragyan Pandey Vs St.
of UP & anr., 2021 LawSuiut (All) 603

2. Jagannath Verma & ors. Vs St. of U.P. &
anr.,2015 (88)AllCriC 1