# Dilshad Ahmad Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 3 ILRA 1003
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-17
- **Case number:** Crl. Revision No. 242 of 2023
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dilshad-ahmad-revisionist-v-state-of-u-p-anr-49761
- **Pages:** 4

## Headnote

1004 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Criminal Law - The Juvenile Justice
(Care & Protection of Children) Act, 2015 -
Section 102 - Revision, Section 9 -
Procedure to be followed by a Magistrate
who has not been empowered under this
Act. , Section 94 - Presumption and
determination of age , Indian Penal Code,
1860 - Section 354(B) - Assault or use of
criminal force to woman with intent to
disrobe , Protection of Children from
Sexual Offence Act, 2012 - Section 17/18
- juvenility can be claimed at any stage
even pendency of the appeal. (Para - 5)

Revisionist preferred an application before trial
court - for declaring his juvenility - trial court
rejected birth certificate of revisionist issued by
Panchayat - in a cursory manner without
passing any appropriate order - without
considering evidence - procedure prescribed by
the Act, 2015 not followed.(Para - 3,5)

HELD:-Direction issued to trial court to decide
the application to claim the juvenility of the
revisionist within one month, as per sections 9
and 94 of the Act, 2015. Impugned order
passed by trial court quashed. (Para -7)

Criminal revision allowed. (E-7)

## Text

3 All. Dilshad Ahamd Vs. State of U.P. & Anr.
1003

14. This fact is undisputed that the
chargesheet has already been filed before
the trial court, so, in these circumstances,
learned trial court without application of
judicial mind wrongly rejected the release
application. Even the learned trial court did
not bother to follow the direction issued by
revisional court and the learned trial court
neither read the Section 451 of CrPC nor
follow the dictim of Hon'ble Apex Court in
Sunderbhai Ambalal Desai (Supra).

15. It is clear that the revisionist is
entitled to the possession of above vehicle.
This seized vehicle is related to the
accident matter and only on the basis of the
pollution certificate or verification of
license of driver the release of the vehicle
could not be denied. Learned Magistrate
has no power to enquire about validity of
license of driver and pollution certificate as
Magistrate is not a police officer or officer
of the transport department.

16. In this matter, it is also desirable
that the production of vehicle is not
inevitable. In General Insurance Council
v/s State of AP 2010 (6) SCC Hon'ble
Apex Court held that the production of the
vehicle is not necessary during trial and the
photograph of the vehicle would be
sufficient to be proved in evidence and the
learned Apex Court directed to release the
vehicle immediate forthwith.

17. The purpose of revisional
jurisdiction is to examine the correctness or
propriety of order. It is indicated that the
order passed by the learned Magistrate is
non
speaking
without
application
of
judicial mind and without reading the
relevant provisions as well as Apex Court
law.
Order
passed
by
the
learned
Magistrate is cryptic and this practice is
highly deprecated. Conduct of the learned
Magistrate is against the Judicial Propriety
and it amounts to contempt also.

18. Learned Magistrate is hereby
warned in future to pass the order in
accordance with law.

19. Consequently, the revision is
hereby allowed.

20. Thus, in above discussion I quash
the impugned order dated 21.1.2023 passed
by
Judicial
Magistrate-III
and
court
concerned is directed to release the above
vehicle in favour of the revisionist
forthwith after taking proper surety.

21. Senior Registrar of this Court is
hereby directed to communicate the order
of this Court to learned Judicial Magistrate,
III, Lucknow through District Judge
Lucknow. It is also directed to District
Judge, Lucknow to keep vigil against the
officer concerned.

22. Accordingly, this Criminal
Revision is disposed of.
----------
(2023) 3 ILRA 1003
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.03.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Crl. Revision No. 242 of 2023

Dilshad Ahmad ...Revisionist
Versus
State of U.P. & Anr. ...Respondent

Counsel for the Revisionist:
Hari Shanker Tewari

Counsel for the Respondent:
G.A.
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
(A) Criminal Law - The Juvenile Justice
(Care & Protection of Children) Act, 2015 -
Section 102 - Revision, Section 9 -
Procedure to be followed by a Magistrate
who has not been empowered under this
Act. , Section 94 - Presumption and
determination of age , Indian Penal Code,
1860 - Section 354(B) - Assault or use of
criminal force to woman with intent to
disrobe , Protection of Children from
Sexual Offence Act, 2012 - Section 17/18
- juvenility can be claimed at any stage
even pendency of the appeal. (Para - 5)

Revisionist preferred an application before trial
court - for declaring his juvenility - trial court
rejected birth certificate of revisionist issued by
Panchayat - in a cursory manner without
passing any appropriate order - without
considering evidence - procedure prescribed by
the Act, 2015 not followed.(Para - 3,5)

HELD:-Direction issued to trial court to decide
the application to claim the juvenility of the
revisionist within one month, as per sections 9
and 94 of the Act, 2015. Impugned order
passed by trial court quashed. (Para -7)

Criminal revision allowed. (E-7)

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. Heard learned counsel for the
revisionist, Shri Vijay Prakash Dwivedi,
learned AGA for the State and perused the
material available on record.

2. The instant Criminal Revision
under Section 102 of the Juvenile Justice
(Care & Protection of Children) Act, 2015
has been filed against the judgment and
order dated 28.2.2023 passed by the
learned Additional Sessions Judge/Special
Judge (POCSO Act), Sultanpur in Special
Sessions Trial No. 537 of 2018 arising out
of case crime No. 423 of 2017, U/s 354(B)
IPC and Section 17/18 of Protection of
Children from Sexual Offence Act, 2012,
Police
Station-
Lambhua,
District-
Sultanpur, whereby the application for
declaring the revisionist as juvenile in
conflict with law has been rejected.

3. Learned counsel for the revisionist
submits that the revisionist preferred an
application for declaring his juvenility
before the trial court U/s 9 of Juvenile
Justice (Care & Protection of Children)
Act, 2015 (in short "the Act, 2015"). The
trial court recorded the findings that the
family register issued by the Panchayat is
not admitted as a proof of age under the
provision of section 94 of the Act, 2015,
which is contrary to the view held by the
Apex Court. But the said application of the
revisionist was rejected by the learned trial
court without appreciating the evidence
available on record and without observing
the procedure as prescribed U/s 9 and 94 of
the Act, 2015 on 28.2.2023. The said
sections 9 and 94 of the Act, 2015 read 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
3 All. Dilshad Ahamd Vs. State of U.P. & Anr.
1005
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 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.

94. Presumption and determination
of age.- (1) Where, it is obvious to the
Committee or the Board, based on the
appearance of the person brought before it
under any of the provisions of this Act
(other than for the purpose of giving
evidence) that the said person is a child,
the Committee or the Board shall record
such observation stating the age of the
child as nearly as may be and proceed with
the inquiry under section 14 or section 36,
as the case may be, without waiting for
further confirmation of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
undertake
the
process
of
age
determination, by seeking evidence by
obtaining --

(i) the date of birth certificate from the
school, or the matriculation or equivalent
certificate from the concerned examination
Board, if available; and in the absence
thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i) and
(ii) above, age shall be determined by an
ossification test or any other latest medical
age determination test conducted on the
orders of the Committee or the Board:

Provided such age determination test
conducted on the order of the Committee or
the Board shall be completed within fifteen
days from the date of such order.

(3)
The
age
recorded
by
the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person."

The further submission the counsel for
the revisionist is that without proper
inquiry and without application of judicial
mind, the trial court rejected the aforesaid
application of the revisionist in a cursory
manner on the same day i.e. on 28.2.2023
without conducting any inquiry under the
Act, 2015.

4. Learned counsel for the revisionist
submitted that in section 94 of the Act,
2015, it is clearly provided that first
preference should be given to the date of
birth certificate issued from the school or
the matriculation or equivalent certificate
issued from the concerned board. But the
counsel submitted that the revisionist is
illiterate and he never got admitted in any
school and thus, his birth certificate issued
from the board is not available. It is further
submitted that as per section 94(ii) of the
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 2015, birth certificate issued by the
Panchayat shall be considered. But the
learned trial court rejected the birth
certificate of the revisionist issued by the
Panchayat in a cursory manner without
passing any appropriate order. It is also
submitted that learned trial court in the
judgement mentioned that in 313 CrPC
statement, the revisionist himself stated that
he was about 20-21 years. The matter
pertains to year 2017, which itself shows
that six years ago, the age of the revisionist
was less than 18 years. Moreover, in
pariwar register issued by the Gram
Panchayat, the date of birth of the
revisionist is 2001. The counsel further
submitted that juvenility can be claimed at
any stage even pendency of the appeal.

5. Learned AGA vehemently opposed
and submitted that the trial court rejected
the application of the revisionist after
applying judicial mind. Thus, the impugned
order passed by the trial court is not liable
to be quashed.

6. Considering the entire facts and
circumstances of the case, learned trial
court is directed to decide the application to
claim the juvenility of the revisionist within
one month as per sections 9 and 94 of the
Act, 2015. Till determination of claim of
the juvenility, no final order shall be
passed.
The
impugned
order
dated
28.2.2023 passed by the trial court is
hereby quashed.

7. Accordingly, the instant revision is
hereby allowed.

8. Let this order be communicated to
the
court
concerned
for
necessary
compliance.
----------
(2023) 3 ILRA 1006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2023

BEFORE

THE HON'BNLE RAMESH SINHA, J.
THE HON'BLE RAJIV GUPTA, J.

Crl. Misc. Writ Petition No. 1948 of 2023

Kuldeep Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Brij Raj, Agarwal Archi Piyush

Counsel for the Respondents:
G.A., Sri Susheel Kumar Singh, Sri Ugrasen
Kumar Pandey

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323, 376, 504 & 506 - The
Protection
of
Children
from
Sexual
Offences Act, 2012 - Section 3/4 , The
Code
of
criminal
procedure,
1973
-
Section 73 - Warrant me be directed any
person - If during investigation, the
Investigating Officer intends to arrest the
person accused of the offence, he has to
seek for and obtain a warrant of arrest
from the Magistrate - Magistrate is fully
competent to issue non-bailable warrant
to apprehend recalcitrant person who is
accused of non-bailable offence and is
evading arrest. (Para - 10)

Investigation pending - I.O. filed an application
before Special Judge (POCSO Court) - petitioner
is wanted accused in F.I.R. - accused/petitioner
evading arrest - not appearing before police
for getting his statement recorded - not cooperating with investigation - Special Judge
(POCSO Court) issued a non-bailable warrant
against petitioner - hence petition for quashing
of order.(Para - 3,8)

HELD:-Special Court (POCSO Act) rightly
exercised his power in issuing non-bailable
warrant against the petitioner. Impugned order
issuing a non-bailable warrant against the