# Phool Chand & Ors v. State

- **Citation:** (2014) 2 ILRA 790
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-07
- **Bench:** Arun Tandon, Akhtar Husain Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-chand-ors-v-state-42978
- **Pages:** 4

## Headnote

Juvenile Justice(Care & Protection), Act2000, Section-7-A- Application to hold
enquiry-plea
of
juvenile-at
appellate
stage-claim based upon statement of
appellant under Section 313 Cr.P.C.-in
absence of other material-age disclosed
in statement-being tentive observation
from physical appearance-can not be
basis for enquiry-rejected.

Held: Para-7
We have examined the application made by
Heera and we find that except for referring
to the statement under Section 313 Cr.P.C.
no other material has been brought on
record which may have same bearing on
the issue of age of the appellant Heera. So
far as the statement made under Section
313 Cr.P.C. is concerned, the Apex Court in
the case of Abuzar Hossain Alias Gulam
Hossain (Supra) itself in paragraph 14 has
recorded that the statement recorded under
Section 313 Cr.P.C. is only a tentative
observation based on physical appearance
which is hardly determinative of age and
such statement cannot be regarded as
sufficient for even a prima facie impression
being formed qua the accused being a
juvenile on the date of incident.

Case Law discussed:
2012(79) ACC, 991(SC)

## Text

790 INDIAN LAW REPORTS ALLAHABAD SERIES
sole question which was to be decided by the
full bench was that whether proceedings held
on application to set aside the sole irregularity
etc. are judicial proceedings amenable to
revisional jurisdiction of the Board of
Revenue. The full bench has held that
commissioner while deciding the objection
under Rule 285-I of U.P. ZA&LR Rules will
be a 'court' and the proceedings taken before
him will deemed judicial proceedings. The
issue, whether provisions of Section 5 of the
Limitation Act is applicable to the provision
of Section 17 of the Payment of Wages Act,
has not been discussed and decided.

15. From the above discussions and
reasons stated by the Supreme Court in the
case of decision of Hongo India (Supra) and
decision of this court in Hind Majdoor
Sabha, U.P versus State of U.P and others
(supra), it has to be held that provisions of
Section 5 of the Limitation Act will not be
applicable to the provisions of Section 17 of
the Payment of Wages Act and appellate
court has no power to condone the delay and
except the appeal beyond limitation provided
in that. The court of appeal has rightly
rejected the application for condonation of
delay and no interference is required in that
order rejected. Hence, the petition is liable to
dismissed and it is hereby by dismissed.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE AKHTAR HUSAIN KHAN, J.

Criminal Misc. Application No. 193240 of
2014 in Criminal Appeal No. 119 of 1986

Phool Chand & Ors. ...Appellants
Versus

State ...Respondent
Counsel for the Appellants:
Sri P.N. Mishra, Sri Apul Mishra, Sri K.N.
Pandey

Counsel for the Respondents:
A.G.A.

Juvenile Justice(Care & Protection), Act2000, Section-7-A- Application to hold
enquiry-plea
of
juvenile-at
appellate
stage-claim based upon statement of
appellant under Section 313 Cr.P.C.-in
absence of other material-age disclosed
in statement-being tentive observation
from physical appearance-can not be
basis for enquiry-rejected.

Held: Para-7
We have examined the application made by
Heera and we find that except for referring
to the statement under Section 313 Cr.P.C.
no other material has been brought on
record which may have same bearing on
the issue of age of the appellant Heera. So
far as the statement made under Section
313 Cr.P.C. is concerned, the Apex Court in
the case of Abuzar Hossain Alias Gulam
Hossain (Supra) itself in paragraph 14 has
recorded that the statement recorded under
Section 313 Cr.P.C. is only a tentative
observation based on physical appearance
which is hardly determinative of age and
such statement cannot be regarded as
sufficient for even a prima facie impression
being formed qua the accused being a
juvenile on the date of incident.

Case Law discussed:
2012(79) ACC, 991(SC)

(Delivered by Hon'ble Arun Tandon, J.)

1. Application No. 193240 of 2014
has been filed by the appellant no. 4,
Heera in Criminal Appeal No. 119 of
1986 with the prayer that an enquiry may
be got conducted in respect of juvenility
of the convict having regard to the fact
that in his statement under Section 313
Cr.P.C. he had disclosed his age as 20
2 All] Phool Chand & Ors. Vs. State
791
years and he would be aged about 18
years 2 months and 1 day on the date of
incident i.e. 17.12.1983.

2. In paragraph 10 of the affidavit
filed in support of the application it is
stated that there is a chance that the
applicant may be less than 18 years on the
date of incident and, therefore, an
enquiry, to ascertain the age of appellant
no. 4, is necessary. In view of the
amendment introduced in Juvenile Justice
(Care and Protection of Children) Act,
2000 as amended in the year 2006 with
the addition of Section 7-A to the Act.

3. We may record that except for the
reliance on the statement recorded under
Section 313 Cr.P.C. before the Trial
Court, no other document or evidence has
been brought on record by Heera to
support his plea of his being juvenile
within the meaning of Section 7-A read
with Section 20 of the Act, 2000 on the
date of incident.

4. In support of his contention,
counsel for the appellant has placed
reliance upon the judgment of the Apex
Court in the case of Abuzar Hossain Alias
Gulam Hossain vs. State of West Bengal
reported in 2012 (79) ACC, 991 (SC),
specifically paragraph 8.

5. We have heard Shri Apul Mishra
on behalf of the appellant and the learned
Government Advocate.

6. The Apex Court in the case of
Abuzar Hossain Alias Gulam Hossain
(Supra) in paragraph 16 has held that the
claim of juvenility can be raised in appeal
even if it was not pressed before the Trial
Court or had not been so raised before the
Trial Court. However, the Apex Court has
gone on to explain that if the plea of
juvenility is raised for the first time in the
appeal after conviction then the initial
burden is to be discharged by the person
who claims to be juvenile and only if this
burden is discharged and a prima facie
case is made out, the Appellate Court has
the power to direct an enquiry or require
the Magistrate to hold an enquiry into the
claim of juvenility. However, the Apex
Court has clarified that there must be
some material worth consideration for
issuing such a direction. For ready
reference
the
legal
position
as
summarized by the Apex Court in the said
judgment, in paragraph 16, is being
quoted herein below :

?(i) 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. (ii) For
making a claim with regard to juvenility
after conviction, the claimant must
produce some material which may prima
facie satisfy the court that an inquiry into
the claim of juvenility is necessary. Initial
burden has to be discharged by the person
who claims juvenility. (iii) As to what
materials would prima facie satisfy the
court and/or are sufficient for discharging
the initial burden cannot be catalogued
nor can it be laid down as to what weight
should be given to a specific piece of
evidence which may be sufficient to raise
presumption
of
juvenility
but
the
documents referred to in Rule 12(3)(a)(i)
792 INDIAN LAW REPORTS ALLAHABAD SERIES
to (iii) shall definitely be sufficient for
prima facie satisfaction of the court about
the age of the delinquent necessitating
further enquiry under Rule 12. The
statement recorded under Section 313 of
the Code is too tentative and may not by
itself be sufficient ordinarily to justify or
reject the claim of juvenility. The
credibility and/or acceptability of the
documents
like
the
school
leaving
certificate or the voters list, etc. obtained
after conviction would depend on the
facts and circumstances of each case and
no hard and fast rule can be prescribed
that they must be prima facie accepted or
rejected. In Akbar Sheikh2 and Pawan8
these documents were not found prima
facie credible while in Jitendra Singh10
the documents viz., school leaving
certificate, mark-sheet and the medical
report were treated sufficient for directing
an inquiry and verification of the
appellant's age. If such documents prima
facie inspire confidence of the court, the
court may act upon such documents for
the purposes of Section 7-A and order an
enquiry for determination of the age of
the delinquent.

(iv) An affidavit of the claimant or
any of the parents or a sibling or a relative
in support of the claim of juvenility raised
for the first time in appeal or revision or
before this Court during the pendency of
the matter or after disposal of the case
shall not be sufficient justifying an
enquiry to determine the age of such
person unless the circumstances of the
case are so glaring that satisfy the judicial
conscience of the court to order an
enquiry into determination of age of the
delinquent.

(v) The court where the plea of
juvenility is raised for the first time
should always be guided by the objectives
of the 2000 Act and be alive to the
position that the beneficent and salutary
provisions contained in 2000 Act are not
defeated by hyper-technical approach and
the persons who are entitled to get
benefits of 2000 Act get such benefits.
The courts should not be unnecessarily
influenced by any general impression that
in
schools
the
parents/guardians
understate the age of their wards by one
or two years for future benefits or that age
determination by medical examination is
not very precise. The matter should be
considered prima facie on the touchstone
of preponderance of probability. (vi)
Claim of juvenility lacking in credibility
or frivolous claim of juvenility or patently
absurd or inherently improbable claim of
juvenility must be rejected by the court at
threshold whenever raised.?

7. We have examined the application
made by Heera and we find that except for
referring to the statement under Section 313
Cr.P.C. no other material has been brought
on record which may have same bearing on
the issue of age of the appellant Heera. So far
as the statement made under Section 313
Cr.P.C. is concerned, the Apex Court in the
case of Abuzar Hossain Alias Gulam
Hossain (Supra) itself in paragraph 14 has
recorded that the statement recorded under
Section 313 Cr.P.C. is only a tentative
observation based on physical appearance
which is hardly determinative of age and
such statement cannot be regarded as
sufficient for even a prima facie impression
being formed qua the accused being a
juvenile on the date of incident.

8. In view of the said legal position and
the facts discharged in the application made
by the counsel for the appellant Heera, we do
not find that there is any material on record
even on prima facie basis for an enquiry being
directed into the claim of juvenility of Heera.
2 All] Pramod Kumar Dixit 3125 (S/S) 2012 Vs. State of U.P. & Ors.
793

9. The application is, therefore,
rejected.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2014

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Special Appeal Defective No. 387 of 2014

Pramod Kumar Dixit 3125(S/S) 2012
 ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.K. Verma

Counsel for the Respondents:
C.S.C.

U.P. Police Regulation-Regulation 505Resignation-when accepted within 2 month
from tender-whether bad-held-'No'.

Held: Para-6
It is thus clear that the authority is
empowered to accept a resignation even
prior to the expiry of the period of two
months. We therefore in addition to the
reasons given by the learned Single Judge
uphold the judgment for the conclusions
drawn hereinabove.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard learned counsel for the parties
on the merits of the appeal after having
condoned the delay.

2. Learned counsel for the appellant
has urged two points. Firstly, that the
resignation tendered by the appellant was
not voluntarily and secondly there is a
provision namely Regulation 505 of the
U.P. Police Regulations which mandates
that the personnel against whom any
enquiry is pending shall not be permitted
to resign.

3.

Having
considered
the
submissions raised as well as having gone
through the judgment of the learned
Single Judge, we find that the learned
Single Judge has categorically recorded
the following finding in Paragraph 13:-

"13.Sequence
of
events
noticed
above clearly indicates that the petitioner
submitted his resignation letter on 16th of
February, 2005. An enquiry was held as
to whether resignation was voluntary, or
not. Concerned Circle Officer reported
that resignation letter furnished by the
petitioner was a result of voluntary act.
On verification of the said fact, vide order
dated 24th of February, 2005, resignation
of the petitioner was accepted w.e.f. 28th
of February, 2005."

4. This recital in the judgment could
not be successfully assailed nor any such
ground has been taken that the recital of the
facts as noted by the learned Single Judge
suffers from any infirmity against records.
Consequently, the resignation was given
voluntarily as recorded by the learned
Single Judge and we do not find any
material so as to differ from the said view.

5. The second submission raised by the
learned counsel is not legally tenable,
inasmuch as, the option in relation to the
employee does not bar the authority from
accepting the resignation in terms of the
proviso to Regulation 505. The law is settled
by this court in the case of Ram Dhar Pandey
Vs. State of U.P., Special Appeal No. 88 of
2004 decided on 18th July, 2012 where this
court has held as under:-