# Dr. Mod. Iqbal Gaji v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 745
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-07
- **Case number:** Application U/S 482. No. 20368 of 2017
- **Bench:** Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-mod-iqbal-gaji-v-state-of-u-p-anr-50015
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 482-Applicant
seeks quashing of order declaring the opposite
party as juvenile-All the accused in the case
were given capital punishment-Appeal-order
modified to life imprisonment-one PIL filed for
release of prisoners who may have been below
18 years of age on the date of commission-
directions issued by High Court provide legal aid
to such prisoners-opposite party applied -age
determined by medical board-opposite party
declared juvenile-pressence of remedy of Appeal
will not render the Application u/s 482 non
maintainable-impugned
order
reveals
that
complainant was neither served with notice-no
opportunity of hearing-order quashed.

List of Cases cited:

## Text

4 All. Dr. Mod. Iqbal Gaji Vs. State of U.P. & Anr.
745
appropriate order/judgment in accordance
with law.
----------
(2023) 4 ILRA 745
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.04.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Application U/S 482. No. 20368 of 2017

Dr. Mod. Iqbal Gaji ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Avnish Kumar Srivastava, Sri Anoop
Trivedi

Counsel for the Opposite Parties:
G.A., Sri Brijesh Sahai, Sri Yogesh Kumar
Srivastava, Sri Bhavya Sahai

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 482-Applicant
seeks quashing of order declaring the opposite
party as juvenile-All the accused in the case
were given capital punishment-Appeal-order
modified to life imprisonment-one PIL filed for
release of prisoners who may have been below
18 years of age on the date of commission-
directions issued by High Court provide legal aid
to such prisoners-opposite party applied -age
determined by medical board-opposite party
declared juvenile-pressence of remedy of Appeal
will not render the Application u/s 482 non
maintainable-impugned
order
reveals
that
complainant was neither served with notice-no
opportunity of hearing-order quashed.

List of Cases cited:

1. Prabhu Chawla Vs St. of Raj. & anr.(2016) 16
SCC 30

2. Dhariwal Tobacco Products Ltd. & ors. Vs St.
of Mah. & anr., (2009) 2 SSC 370
(Delivered by Hon'ble Mrs. Sadhna Rani
(Thakur), J.)

1. Heard Sri Anoop Trivedi, learned
Senior Advocate assisted by Sri Avnish
Kumar Srivastava, learned counsel for the
applicant and Sri Brijesh Sahai, learned
Senior Advocate assisted by Sri Bhavya
Sahai, learned counsel for the opposite
party no. 2.

2. By moving this application under
Section 482 Cr.P.C. the applicant seeks to
invoke the inherent jurisdiction of this
court to quash the order dated 19.05.2017
passed by the Juvenile Justice Board, Agra
in Misc. Application No. 109 of 2017
(arising out of Crime No. 131 of 2003)
under Sections 147, 148, 149, 307, 302
IPC, Police Station Kotwali, District
Meerut by which the Juvenile Justice
Board, Agra declared the convict/O.P. No.
2 a juvenile.

3. As per facts of the case Sessions
Trial Nos. 668, 669 and 671 of 2003, Case
Crime No. 131 of 2003 and 134 of 2003
respectively under Sections 147, 148, 149,
307, 302 IPC and 25/27 Arms Act, Police
Station Kotwali, District Meerut were
decided by the trial court vide judgement
dated 04.08.2007 and all the four accused
persons were found guilty. The case was
decided into capital punishment. Criminal
Reference No. 21 of 2007 - State Vs.
Khalid and others, was made to this court
to confirm the capital punishment. The
accused persons also filed Criminal Appeal
No. 5169 of 2007 - Khalid and others Vs.
State of U.P. before this court. Both the
reference and criminal appeal were heard
together by the Division Bench of this
court. The reference was dismissed and the
appeal was partly allowed vide judgment
and order dated 05.09.2008. The death
746 INDIAN LAW REPORTS ALLAHABAD SERIES
sentence was set aside and was commuted
to life imprisonment i.e. imprisonment for
whole life with this provision that the
accused persons shall not be entitled to be
considered for remission of sentence
unless, they have undergone actual term of
20 years imprisonment including the period
already undergone by them. The sentence
of fine awarded to the appellants under
Sections 302/149 IPC as well as sentence
of imprisonment and fine awarded to them
under Sections 307/149 and 148 IPC and
the conviction of accused appellants Tahir
and Moinuddin and the sentence awarded
to them under Section 25 Arms Act were
upheld. All the sentences of imprisonment
were
to
run
concurrently.
The
convict/opposite party no. 2 along with
other co-accused persons was thereafter
transferred to Central Jail, Agra to serve the
sentence.

4. One Sister Sheeba Jose, a lawyer
and human right activist, filed a Public
Interest Litigation No. 855 of 2012 (Sister
Sheeba Jose Vs. State of U.P. and others)
before this Court for release of the
prisoners, who may have been below 18
years of age on the date of commission of
the offence and were detained in various
district or Central Jail. For Agra, Central
Jail a list of 18 prisoners was made for
grant of such relief. This writ petition was
decided by the division bench of this Court
vide order dated 24.05.2012 and directions
were issued to the District Judges, who
were also the Chairpersons of their Legal
Services Authorities, to see that the
efficient lawyers were appointed for the
purpose of providing legal aid to the
prisoners, who were unable to engage
private lawyers and who were mentioned in
the list furnished by the State Government
and described to be below 18 years in age
on the date of commission of offence. The
present applicant applied on 25.02.2017
(through Jail Superintendent, Central Jail,
Agra) before the Secretary, District Legal
Services Authority for providing him legal
aid. On his application, the District Legal
Services Authority appointed one Sri Pal
Singh, Advocate for providing him legal
aid and thereafter on behalf of the
applicant, an application was moved on
06.04.2017 before the Juvenile Justice
Board, Agra claiming therein that he was a
juvenile at the time of incident. He was not
literate and had no documentary evidence
regarding his age, so his age may be
determined by constituting a medical
board. His medical was done by the
medical board and on the basis of report of
medical
board
dated
17.05.2017
the
Principal
Magistrate,
Juvenile
Justice
Board, Agra vide order dated 19.05.2017
declared the convict/opposite party no. 2 a
juvenile on the date of incident. This order
dated 19.05.2017 is the subject matter of
the present proceedings.

5. The opposite party no. 2 along with
one co-accused filed a Writ Petition
(Criminal) No. 155 of 2022 under Article
32 of the Constitution of India, before the
Apex Court, which was disposed of vide
order dated 06.09.2022 with the direction
to this court to dispose of the Criminal
Misc. Application U/S 482 Cr.P.C. No.
20368 of 2017 against the present accused
and the Criminal Revision No. 2913 of
2019 filed by the co-accused, expeditiously
and not later than six months.

6. After these directions of the Apex
Court, the Application U/S 482 No. 20368
of 2017 against convict - opposite party no.
2 along with Criminal Revision No. 2913
of 2019 filed by the co-accused/convict for
the first time were placed before this court
on 22.03.2023. On this date, learned
4 All. Dr. Mod. Iqbal Gaji Vs. State of U.P. & Anr.
747
counsel for the applicant in the application
under Section 482 Cr.P.C. above seeked
time so that he may inform the counsel for
the
revisionist
and
accordingly
date
28.03.2023 was fixed and on 28.03.2023
the arguments in the present Application
U/S 482 No. 20368 of 2017 were heard.

7. The impugned order dated
19.05.2017 was assailed by the learned
counsel for the applicant on the grounds
that the judgment in Crime No. 131 of 2003
was passed on 04.08.2007 by the District
Court, Meerut and only to undergo the
sentence awarded therein the convict -
opposite party no. 2 was lodged in Central
Jail, Agra. The Principal Magistrate,
Juvenile Justice Board, Agra had no
jurisdiction to determine the age of the
juvenile. Vide order dated 24.05.2012 the
division bench of this Court in Criminal
Writ - Public Interest Litigation No. 855 of
2012 directed the Juvenile Justice Board to
determine the age of the person in question,
after providing an opportunity to the
prosecution and the complainant of being
heard but the applicant was not given an
opportunity of being heard. He was not
given any notice by the Juvenile Justice
Board, Agra, so he could not oppose the
application of the opposite party no. 2 for
declaring him juvenile. In fact, the opposite
party no. 2 put before the Board wrong
facts that he was illiterate, while on his
statement under Section 313 Cr.P.C. on
16.05.2006 he had put in signatures this
fact falsifies his claim of being illiterate.
Further, it is argued that in his statement
under Section 313 Cr.P.c. on 16.05.2006
the opposite party no. 2 has disclosed his
age to be 21 years. Thus, on the date of
incident in the year 2003 he could be said
to be of 18 years of age. In the voter list of
the year 2017 his age is mentioned as 41
years. Thus, in the year 2003 his age
becomes 27 years. He had also executed
two agreements to sale on 15.09.2000 and
20.09.2000 respectively and a power of
attorney on 27.08.1998. All the documents
were executed under his own signatures
independently and not as a minor under
guardianship of any other person. Thus, on
the basis of above admissions he was major
on the date of incident i.e. 07.06.2003, as a
person cannot make the claim against his
own admissions. Hence, the impugned
order is prayed to be set aside.

8. This application of the applicant
under Section 482 Cr.P.C. was opposed by
the learned counsel for the opposite party
no. 2 on the ground that as per Section 52
of Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred to
as the 'Act') any person aggrieved by an
order made by a competent authority under
this Act may, within thirty days from the
date of such order, prefer an appeal to the
Court of Sessions. It was claimed that as a
remedy was available to the applicant in the
statute itself then he could not invoke the
inherent jurisdiction of this court under
Section 482 Cr.P.C. If the Act was silent
about the remedy, only then the application
under Section 482 Cr.P.C. could have been
moved.

9. It is further submitted by the
learned counsel for the opposite party no. 2
that by the same Juvenile Justice Board
another co-accused was also declared
juvenile vide order dated 22.04.2017 and
against that order, though, the present
applicant initially took the same recourse of
filing the application under Section 482
Cr.P.C. No. 18718 of 2017 before this
court, but later on as under the statue the
remedy of appeal had been provided and
that application was wrongly filed by the
applicant. His application under Section
748 INDIAN LAW REPORTS ALLAHABAD SERIES
482 Cr.P.C. was dismissed and in the light
of specific statutory provision under the
Act the applicant filed an appeal against the
order dated 22.04.2017. It was further
argued by the learned counsel for the
opposite party no. 2 that the learned
counsel for the applicant, who happened to
be the counsel of that another co-accused
also, could not avail two different remedies
regarding the same cause of action in the
same matter in the two cases of two coaccused persons. It was also submitted that
while as per Section 7A of the Act and
Rule 12 of Rules, 2017 if the person is
illiterate having no educational certificate
or having no birth certificate issued by a
corporation
or
municipal
board
or
panchayat, the only recourse before him to
get his age determined was to sought the
medical opinion from a duly constituted
medical board and that board would have to
declare the age of juvenile or child and as is
the case here that by moving an application
the opposite party no. 2 got himself
declared juvenile on the date of incident
vide impugned order dated 19.05.2017
passed
by
the
Principal
Magistrate,
Juvenile Justice Board, Agra on the basis of
the medical report by medical board. It is
further
submitted
that
as
the
convict/opposite party no. 2 was minor on
the date of incident so his admission, either
in his statement under Section 313 Cr.P.C.
or on the basis of other documents like
agreement to sale or power of attorney
cannot, be said to be of any importance
being admission on the part of a minor.

10. Learned counsel for the applicant
submitted in reply that though he had filed
Application U/S 482 Cr.P.C. No. 18718 of
2017 in case of co-accused of this case,
during pendency of that application he
came to know about the release of that coaccused, so he had to withdraw that
application under Section 482 Cr.P.C. and
had to file an appeal before the District
Judge, which was allowed by that court and
the order in favour of that co-accused
declaring him to be juvenile on the date of
incident was set aside. But in the present
case when this application under Section
482 Cr.P.C. was moved the accused had
not been released from the judicial custody,
so
he
proceeded
with
the
present
application under Section 482 Cr.P.C. in
case of the present accused/convict.

11. If we go through the record, it is
found that the present accused and coaccused both were ordered to be released
on bail by the Apex Court vide order dated
17.05.2022
passed
in
Writ
Petition
(Criminal) No. 155 of 2022 above. Thus, as
both the co-accused persons were released
by the same order and that too in the year
2022 the argument of the learned counsel
for the applicant that at the time of
withdrawal application u/s 482 No. 18718
of 2017, co-accused, the opposite party no.
2 in that application, had been released, so
they had to withdraw that application under
Section 482 Cr.P.C. on 11.10.2017 with a
prayer to avail appropriate legal remedy
against the impugned order, becomes
wrong.

12. Otherwise also the learned
counsel for the applicant failed to show any
provision that if a person is released on
bail, the application against that person
moved under Section 482 Cr.P.C., becomes
infructuous.

13. Now it is to be seen that whether
in the presence of remedy provided under
the statute/clear provision of appeal,
against the impugned order the application
under Section 482 Cr.P.C. of the present
applicant is maintainable?
4 All. Dr. Mod. Iqbal Gaji Vs. State of U.P. & Anr.
749

14. It is apposite to reproduce Section
482 Cr.P.C. which is as under:-

482. Saving of inherent powers of
High Court. Nothing in this Code shall be
deemed to limit or affect the inherent powers
of the High Court to make such orders as
may be necessary to give effect to any order
under this Code, or to prevent abuse of the
process of any Court or otherwise to secure
the ends of justice.

15. As per this section, the only purpose
to proceed under Section 482 Cr.P.C. is to
prevent the abuse of the process of any Court
and otherwise to secure ends of justice. Thus,
in the section itself, there is no bar that if a
simultaneous/equally efficacious remedy is
available to a person in the statute itself, he
cannot avail the remedy provided under
Section 482 Cr.P.C.

16. If we go through the order
passed in Application U/S 482 No. 18718
of
2017
dated
11.10.2017
of
the
coordinate bench of this court, in case of
co-accused of the present case, that
application under Section 482 Cr.P.C. of
the applicant was not rejected on the
ground that equally efficacious relief is
available to the applicant in the statute
itself nor that application under Section
482 Cr.P.C. was converted into appeal by
this court, as submitted by the learned
counsel for the opposite party no. 2,
rather the applicant himself did not press
his application and prayed to withdraw
that application with liberty to avail
appropriate legal remedy and on the basis
of such prayer only, the coordinate bench
of
this
court
passed
order
dated
11.10.2017 and permitted the applicant to
withdraw his application under Section
482 Cr.P.C. No. 18718 of 2017 with
liberty to avail appropriate legal remedy.

17. Learned counsel for the opposite
party no. 2 could not place before the court
any law/judgement that if a person is
having equally efficacious relief he cannot
avail the remedy under Section 482 Cr.P.C.

18. The Apex Court in judgment
Prabhu Chawla Vs. State of Rajasthan
and another (2016) 16 Supreme Court
Cases 30, held that there is no total ban on
exercise of inherent power where abuse of
process of court or other extraordinary
situation warrants exercise of inherent
jurisdiction. Availability of alternative
remedy of Criminal Revision under Section
397 by itself cannot be a good ground to
dismiss an application under Section 482
Cr.P.C.

19. In Dhariwal Tobacco Products
Limited
and
others
Vs.
State
of
Maharashtra and another, (2009) 2
Supreme Court Cases 370, the Apex Court
held that availability of alternative remedy
of filing revision under Section 397 would
not be a ground to dismiss the application
under Section 482 Cr.P.C.

20. Thus, in the opinion of the court,
the argument of learned counsel for the
opposite party no. 2 in this regard has not
force. If the court considers that to prevent
the abuse of the process of any court or
otherwise to secure the ends of justice it is
appropriate the court can very well
entertain the application under Section 482
Cr.P.C.

21. It is submitted by the learned
counsel
for
the
applicant
that
vide
impugned order dated 19.05.2017 the
Principal
Magistrate,
Juvenile
Justice
Board, Agra declared the opposite party no.
2 a juvenile, on the date of incident. But
while deciding the application of the
opposite party no. 2 to declare him
750 INDIAN LAW REPORTS ALLAHABAD SERIES
juvenile, the applicant was not given a
chance of being heard. No notice was
issued to him by the Principal Magistrate,
Juvenile Justice Board. The attention of the
court is drawn towards the judgment of
division
bench
of
this
court
dated
24.05.2012 passed in Criminal Writ -
Public Interest Litigation No. 855 of 2012
whereby an order was made for the
Principal
Magistrate,
Juvenile
Justice
Board for determining the age of the
victim, there was a clear direction that the
prosecution and the complainant would
also be given an opportunity to examine
their own witness and to cross-examine the
witnesses, who have been examined on
behalf of the accused and for that purpose
notices of the proceedings before Juvenile
Justice Board shall be served on the
complainant or prosecution. Thus, in the
order dated 24.05.2012 of the division
bench of this court it was a mandatory
condition that before determining the age
of the accused notices shall compulsorily
be served on the complainant and the
complainant had to be given liberty to
examine his own witnesses and crossexamine the witnesses of the accused. But
the perusal of the impugned order dated
19.05.2017
clearly
reveals
that
the
complainant was neither served with a
notice nor was given an opportunity of
being heard or to oppose the application of
the accused for declaring him juvenile on
the date of incident. Thus, the complainant
or his counsel could not appear before the
Principal
Magistrate,
Juvenile
Justice
Board
to
cross-examine
the
accused
witnesses and examine their own witnesses
and raise any objection on the medical
report filed by the medical board.

22. As the Principal Magistrate,
Juvenile Justice Board, Agra in compliance
of order dated 24.05.2012 passed by the
division bench of this court, did not issue
notice for the complainant and as a result
did not provide him an opportunity of being
heard or adduce his evidence or crossexamine the witnesses, it was a blunder on
the part of the Principal Magistrate,
Juvenile Justice Board, Agra. Thus, the
order dated 19.05.2017 is found to be
against the specific directions of the
Division Bench of this court given by order
dated 24.05.2012.

23. So far as the argument of learned
counsel for the applicant that the Juvenile
Justice Board, Agra had no jurisdiction to
determine the age of the accused as the
matter belonged to District Meerut is
concerned it was after conviction from
Meerut District Court only that the accused
was lodged in Central Jail, Agra and this
fact does not give authority to Juvenile
Justice Board, Agra to hear the application
of age determination of the accused.

24. In this regard, para-2 of Section
7A(1) is apposite to mention here:-

[7A. Procedure to be followed
when claim of juvenility is raised before
any court.- (1) ........

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.

25. In the above provision, the
word
'any
court'
means
the
trial
court/High Court/Apex Court. It does
not mean that any court in U.P. wherever
4 All. Sanesh Thakur & Ors. Vs. State of U.P. & Anr.
751
a person wants his application to be
moved. As the case belonged to District
Meerut and it was decided by the
District Court Meerut, the District Court,
Meerut/Principal Magistrate, Juvenile
Justice
Board,
Meerut
only
had
jurisdiction to decide the question of
juvenility of the applicant. Thus, the
order dated 22.04.2017 passed by the
Principal Magistrate, Juvenile Justice
Board, Agra was an order passed without
jurisdiction.

26. The order dated 19.05.2017
passed by the Principal Magistrate,
Juvenile Justice Board, Agra in Misc.
Application No. 109 of 2017 (State Vs.
Munna) arising out of Crime No. 131 of
2003, under Sections 147, 148, 149, 307,
302 IPC, Police Station Kotwali, District
Meerut being without jurisdiction and
passed without issuing notice to the
applicant, is hereby quashed.

27. The application under Section
482 Cr.P.C. is, thus, allowed.
----------
(2023) 4 ILRA 751
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.03.2023

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Application U/S 482. No. 20982 of 2017

Sanesh Thakur & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Harish Kumar Yadav, Sri Suved Kumar
Sharma

Counsel for the Opposite Parties:
G.A., Sri Vinod Kumar Yadav

Dispute between parties-relating to grant of
advertisements to the newspaper published by
the Applicant no.1 from the opposite party no.2present prosecution is incidental and not natural
consequence-compromise between the partiesApplication for compromise rejected-impugnedsection 385 IPC not mentioned in either tables
u/s 320 Cr.P.C.-power of a Court u/s 320 IPC is
different from power u/s 482 Cr.P.C.-opposite
party no.2-a key prosecution witness-declared
his unequivocal intent to turn hostile at the
Trial-allowing proceedings-waste of time -
compromise
accepted-proceedings
quashedApplication allowed. (E-9)

List of Cases cited:

1. Ram Lal & anr Vs St. of J& K, (1999) 2 SCC
213

2. St. of Rajasthan Vs Shambhu Kewat & anr ,
(2014) 4 SCC 149

3. Gian Singh Vs St. of Pun. & anr, (2012) 10
SCC 303

4. Narinder Singh & anr Vs St. of Pun. & anr
(2014) 6 SCC 466

5. Parbatbhai Aahir Vs St. of Guj. (2017) 9 SCC
641

6. St. of M.P. Vs Laxmi Narayan & ors, (2019) 5
SCC 688

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

The brief facts of the case are that :

1. F.I.R. under Sections 385, 323,
504, 506 IPC was registered on 13.8.2015
at P.S.-Civil Lines, District-Moradabad
against the applicants who are four in
number. After conducting the investigation,
the Police has submitted charge-sheet
No.286 of 2015 dated 14.9.2015 under
Sections 385, 323, 504, 506 IPC against all