# Rajesh Kumar Revisionist (In Jail) v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 281
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-14
- **Case number:** Criminal Revision No. 98 of 2020
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-revisionist-in-jail-v-state-of-u-p-anr-45394
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal Code,
1973-Section 397/401 - Indian Penal
282 INDIAN LAW REPORTS ALLAHABAD SERIES
Code, 1860-Sections 393, 302 - Juvenile
Justice (Care and Protection of Children)
Act, 2000-Sections 7, 7-A, 9, Juvenile
Justice (Care and Protection of Children)
Rules 2007-Clause 12-Application- Claim
to be juvenile-rejection- issue of juvenility
regarding revisionist has been wrongly
decided by the trial court and application
has been rejected even after giving
specific finding in favour of revisionisttrial court has unnecessarily entered into
hyper technical things while rejecting the
application for juvenility which is contrary
to procedure provided under the Act- On
the date of occurrence i.e. 04.05.2012,
age of revisionist was below 18 years-the
court below has illegally applied the
provisions of J. J. Act, 2015 to assess the
ability of the revisionist to understand the
nature of crime and declined to treat him
as a juvenile. (Para 3 to 20)

B. Under the newly inserted Section 7-A to
the J. J. Act, 2000 it is made obligatory to
the court that, after enquiry, if it finds a
person to be juvenile on the date of
commission of offence, it shall refer the
matter to the Juvenile Justice Board for
passing appropriate orders as per provisions
of law. Provisions as contained in Section 7A r/w Rule 12 of J. J. Rules, 2007 clearly
reveals that after enquiry, in case the
person considered as juvenile he should be
given benefit of the Act.
 (Para 17)

The revision is allowed. (E-6)

List of Cases Cited:-

## Text

11 All. Rajesh Kumar Vs. State of U.P. & Anr.
281

53. After the 2015 Amendment of the
Act, the only thing left with the Court to
see was existence of arbitration agreement
for referring the dispute to arbitrator. This
amendment got approval of the Court in
case of Duro Felguera, S.A. (supra), M/S
Mayavti Trading Pvt. Ltd. (supra) and M/s.
Uttarakhand Purv Sainik Kalyan Nigam
Ltd. (supra) but the instant case is totally on
different footing, and the facts of the case
are totally distinguishable from the facts
and issue in decision cited above, as in the
present case Clause 34 which is part of the
Promoter's
Agreement
categorically
provides for the period for which the
agreement was to remain in force i.e. 12
years, from the date of signing of the
agreement. Undisputedly, the agreement
was signed on 19.07.1993 and it was never
extended or renewed and came to an end on
18.07.2005. No doubt clause 33 is an
arbitration clause providing for dispute to
be settled through arbitration, but the same
cannot be read in isolation and this
arbitration agreement has to be in existence
as per Clause 11(6A) on the date when the
said arbitration clause is invoked and the
matter is referred to arbitration.

54. It was on 14.10.2019 that the
petitioner had invoked Clause 33 for the
appointment of arbitrator i.e. more than 14
years after the promoter's agreement came
to an end. Once the agreement is not in
force (existence), none of its provisions can
be invoked as the entire agreement has
come to an end by efflux of time.

55. No doubt it is true that Court at
pre-reference stage has to only look into the
existence of arbitration agreement, no more
no less. But in the present case, the
agreement itself has come to an end in the
year 2005 and after a lapse of 14 years
petitioner cannot be permitted to invoke
one of its clauses for the appointment of
arbitrator.

56. Having considered the rival
submissions and material on record, I find
that the case of petitioner does not fall
under Section 11(6) of the Arbitration Act
for the appointment of arbitrator in
pursuance to the Promoter's Agreement
dated 19.07.1993, as the 2015 Amendment
provides in Section 11(6A) for the
existence of the arbitration agreement and
there being no arbitration agreement in
existence at the time of making of the
application
as
the
said
Promoter's
Agreement which is relied upon had come
to an end on 18.07.2005, as per Clause 34
of the said agreement.

57. Petition has no force and is
dismissed.

58. Parties to bear their own costs.
----------
(2020)11ILR A281
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.10.2020

BEFORE
THE HON'BLE DINESH PATHAK, J.

Criminal Revision No. 98 of 2020

Rajesh Kumar ...Revisionist (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri
Akhilesh
Srivastava,
Sri
Saksham
Srivastava

Counsel for the Opposite Parties:
A.G.A., Sri Satendra Kumar Upadhyay

A. Criminal Law - Code of Criminal Code,
1973-Section 397/401 - Indian Penal
282 INDIAN LAW REPORTS ALLAHABAD SERIES
Code, 1860-Sections 393, 302 - Juvenile
Justice (Care and Protection of Children)
Act, 2000-Sections 7, 7-A, 9, Juvenile
Justice (Care and Protection of Children)
Rules 2007-Clause 12-Application- Claim
to be juvenile-rejection- issue of juvenility
regarding revisionist has been wrongly
decided by the trial court and application
has been rejected even after giving
specific finding in favour of revisionisttrial court has unnecessarily entered into
hyper technical things while rejecting the
application for juvenility which is contrary
to procedure provided under the Act- On
the date of occurrence i.e. 04.05.2012,
age of revisionist was below 18 years-the
court below has illegally applied the
provisions of J. J. Act, 2015 to assess the
ability of the revisionist to understand the
nature of crime and declined to treat him
as a juvenile. (Para 3 to 20)

B. Under the newly inserted Section 7-A to
the J. J. Act, 2000 it is made obligatory to
the court that, after enquiry, if it finds a
person to be juvenile on the date of
commission of offence, it shall refer the
matter to the Juvenile Justice Board for
passing appropriate orders as per provisions
of law. Provisions as contained in Section 7A r/w Rule 12 of J. J. Rules, 2007 clearly
reveals that after enquiry, in case the
person considered as juvenile he should be
given benefit of the Act.
 (Para 17)

The revision is allowed. (E-6)

List of Cases Cited:-

1. Abdul Razzak Vs St. of U.P. (2015) AIR SC 1770

2. Jitendra Singh @ Babboo Singh & anr. Vs St of
U.P. (2013) 11 SCC 193

3. Abuzar Hossain Vs St. of W. B. (2012) 10 SCC
489

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Sri Akhilesh Srivastava,
learned counsel for revisionist, Sri O. P.
Mishra, learned A.G.A. for State, Sri
Satendra
Kumar
Upadhyay,
learned
counsel for O.P. no.2., who has refused to
file the counter affidavit, and perused the
record on board.

2. The instant criminal revision under
Section
397/401
Cr.P.C.,
has
been
preferred against order dated 22.11.2019
passed by Additional Sessions Judge/Fast
Track Court, Court No.2, Aligarh in
Sessions Trial No.961 of 2012 arising out
of Case Crime No.189 of 2012 under
Sections 393, 302 IPC, Police StationAkrabad,
District-Aligargh,
whereby
application dated 09.07.2017 filed by
revisionist, claiming himself to be a
juvenile at the time of incident, has been
rejected.

3. In the present matter, revisionist is
claiming himself as a juvenile. As per FIR
version, in the intervening night of
03/04.05.2012, accused-revisionist along
with two other persons barged into the
tower with an intention of looting the
battery installed there. While they were
challenged, two of the accused fled away
from the scene and third accused i.e.
revisionist
was
caught
hold
by
the
informant's son namely, Bablu and in order
to set himself free, accused-revisionist
discharged fire shot upon Bablu, who
sustained injury on his chest and died on
the spot. In the process of catching hold,
one wallet, one combination plier (pilash),
one wrench (pana), a handle of screwdriver
and one white towel fell down on the spot.
The wallet contained driving license and
identity card of revisionist as well as one
mobile sim and cash amounting Rs.30 in it.
On the basis of aforesaid recovery from the
spot, accused-revisionist has been named in
the FIR. Taking the plea of juvenility,
revisionist claimed for separate trial and to
11 All. Rajesh Kumar Vs. State of U.P. & Anr.
283
this effect, he moved an application dated
09.07.2017 before the trial Court to declare
him juvenile, as his date of birth is
07.07.1994 and at the time of incident, he
was hardly aged about 17 years 9 months
and 27 days.

4. In support of his claim of
juvenility, revisionist had filed School
Leaving Certificate and one medical report.
Ram Singh, father of revisionist, and one
Veer Pal Singh, teacher of the school have
given their statements in support of
revisionist's claim of juvenility and they
had corroborated the claim of revisionist
that his date of birth is 07.07.1994.

5. After examining the school
certificate, which was proved by school
teacher from the S. R. Register and
statements of witnesses, learned Court
below came to a conclusion that date of
birth of revisionist is 07.07.1994 and,
accordingly, at the time of incident i.e.
04.05.2012 he was aged about 17 years 10
months, but the Court below has refused to
treat the revisionist as a juvenile on the
ground that hardly 50-55 days were short in
completion of 18 years of his age and he
was able to understand the consequences of
the occurrence.

6. Learned counsel for the revisionist
submitted that since the revisionist was a
juvenile, as his date of birth was noted to
be 07.07.1994, on the date of occurrence
i.e. 04.05.2012, he is entitled to the benefit
of provision of the Juvenile Justice (Care
and Protection of Children) Act, 2000
(hereinafter referred to as "J. J. Act, 2000").
The Court below had partly applied J.J.
Act, 2000 only with respect to determining
the age of present revisionist but it had
illegally applied the provisions of Juvenile
Justice (Care and Protection of Children)
Act, 2015 (hereinafter referred to as "J. J.
Act, 2015") in negating his juvenility on
the ground of his ability to understand the
nature of crime. Learned counsel for
revisionist has emphasized upon the
provisions of J. J. Act, 2015 which denotes
the power of Board by conducting
preliminary assessment into the heinous
offence. Under the aforesaid provision
Board has been entrusted to conduct
preliminary enquiry to assess with regard to
mental and physical capacity of an accused
for committing a crime and also his ability
to understand the consequences of the
offence and circumstances in which he
allegedly committed the offence. Learned
counsel for the revisionist submitted that
since this matter relates to the year 2012,
provisions of J. J. Act 2000 ought to have
been applied in determining the question of
juvenility of the accused and, as per
provisions of Section 7-A of J. J. Act,
2000, after coming to the conclusion that
accused is below the age of 18 years on the
date of occurrence, it shall forward the
matter before the Juvenile Justice Board for
passing appropriate order. Learned counsel
has placed reliance on a judgement of
Hon'ble Supreme Court in the matter of
Abdul Razzak vs. State of U.P., reported
in AIR 2015 SC 1770. In the aforesaid
case, the accused/petitioner was convicted
under Section 302 I.P.C. and sentenced to
undergo life imprisionment by the trial
court. The order of the trial court was
affirmed by the High Court and his Special
leave petition was also dismissed by the
Hon'ble Supreme Court. Even the review
petition filed before the Hon'ble Supreme
Court was also dismissed. At subsequent
stage, Hon'ble High Court took suo-moto
action under the provisions of Section 7-A
of J.J. Act, 2000. Juvenile Justice Board,
Agra had examined the case of the
petitioner/accused and held that on the date
284 INDIAN LAW REPORTS ALLAHABAD SERIES
of incident, he was less than 18 years of
age. In this background, accused/petitioner
moved before the Hon'ble Supreme Court
with the prayer to release him from the
custody and his prayer was allowed. After
discussing several decisions of the Hon'ble
Supreme Court, it has been held that even if
a person was not entitled to the benefit of
juvenilities under 1986 Act or the present
Act prior to its amendment in 2006, such
benefit is available to a person undergoing
sentences if he was below 18 years of age
on the date of the occurrence. Such relief
can be claimed even if a matter has been
finally decided.

7. Per contra, learned counsel for O.P.
no.2 has supported the impugned order
passed by the Court below and submitted
that the Court below has rightly rejected the
claim of the revisionist with respect to
declaring him as a juvenile. It is further
submitted that accused has almost attained
age of majority i.e. 18 years of age and was
having
ability
to
understand
the
consequences of the offence and the
circumstances in which he was involved in
the crime. He has further submitted that
present revisionist should be treated as an
adult and no ground is made out to consider
his claim as a juvenile under the Juvenile
Act.

8. The Juvenile Act is a special
enactment to protect the fundamental right
of the children and meet out their needs, as
enshrined in our Constitution. Now it is no
more res-integra that a child or juvenile in
conflict with law, who is treated to be less
than 18 years of age, can claim benefit
under the time to time modified/amended
enactments. At present, J.J. Act, 2015 is
enforced after consolidating the amending
law relating to children alleged and found
in conflict with law.

9. In the matter in hand, the
occurrence is of dated May 4, 2012 and on
the date of occurrence, J.J. Act, 2000 was
enacted. Therefore, the revisionist can
claim his juvenility and benefits relating to
it under the J.J. Act, 2000. Date of
occurrence i.e. May 4, 2012 is the relevant
date to determine the age of accused
claiming himself as juvenile under the J. J.
Act, 2000.

10. For the purpose of determining of
juvenility of the accused and giving benefit
relating to it, reference may be made to
Section 7-A of J.J. Act, 2000 read with
Rule 12 of the Juvenile Justice (Care and
Protection
of
Children)
Rules,
2007
(hereinafter referred to as "J.J. Rules,
2007").

11. Section 7-A was inserted in J.J.
Act, 2000 by virtue of Act No. XXXIII,
2006. Section 7-A is nothing but an
extension of Section 7 of J.J. Act, 2000
which denotes that after enquiry, in case
the court is of the opinion that the accused
is a juvenile on the date of commission of
offence, then the court should refer the
matter to the Juvenile Board for passing the
appropriate order. Section 7-A is quoted
below :

"7-A. 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 enquiry, taken 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 :
11 All. Rajesh Kumar Vs. State of U.P. & Anr.
285

Provided
that
the
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 order, and the
sentence if any, passed by a court shall
be deemed to have no effect."

12. Rule 12 of J.J. Rules, 2007,
denotes the procedure for determining the
age of a child or a juvenile in conflict
with law. Rule 12 is quoted below :

"Rule 12. Procedure to be
followed in determination of age.--(1) In
every case concerning a child or a
juvenile in conflict with law, the court or
the Board or as the case may be the
Committee referred to in Rule 19 of these
Rules shall determine the age of such
juvenile or child or a juvenile in conflict
with law within a period of thirty days
from
the
date
of
making
of
the
application for that purpose.

(2) The court or the Board or as
the case may be the Committee shall decide
the juvenility or otherwise of the juvenile
or the child or as the case may be the
juvenile in conflict with law, prima facie on
the basis of physical appearance or
documents, if available, and send him to
the observation home or in jail.

(3) In every case concerning a
child or juvenile in conflict with law, the
age
determination
inquiry
shall
be
conducted by the court or the Board or, as
the case may be, the Committee by seeking
evidence by obtaining--

(a)(i)
the
matriculation
or
equivalent certificates, if available; and in
the absence whereof;

(ii) the date of birth certificate
from the school (other than a play school)
first attended; and in the absence whereof;

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

(b) and only in the absence of
either (i), (ii) or (iii) of clause (a) above,
the medical opinion will be sought from a
duly constituted Medical Board, which will
declare the age of the juvenile or child. In
case exact assessment of the age cannot be
done, the Court or the Board or, as the
case may be, the Committee, for the
reasons to be recorded by them, may, if
considered necessary, give benefit to the
child or juvenile by considering his/her age
on lower side within the margin of one
year, and, while passing orders in such
case shall, after taking into consideration
such evidence as may be available, or the
medical opinion, as the case may be,
record a finding in respect of his age and
either of the evidence specified in any of
the clauses (a)(i), (ii), (iii) or in the
absence whereof, Clause (b) shall be the
conclusive proof of the age as regards such
child or the juvenile in conflict with law.

(4) If the age of a juvenile or
child or the juvenile in conflict with law is
found to be below 18 years on the date of
offence, on the basis of any of the
conclusive proof specified in Sub-rule (3),
the court or the Board or as the case may
be the Committee shall in writing pass an
order stating the age and declaring the
status of juvenility or otherwise, for the
purpose of the Act and these Rules and a
copy of the order shall be given to such
juvenile or the person concerned.
286 INDIAN LAW REPORTS ALLAHABAD SERIES

(5) Save and except where,
further inquiry or otherwise is required,
inter alia, in terms of Section 7-A, Section
64 of the Act and these Rules, no further
inquiry shall be conducted by the court or
the Board after examining and obtaining
the certificate or any other documentary
proof referred to in Sub-rule (3) of this
Rule.

(6) The provisions contained in
this Rule shall also apply to those disposed
of cases, where the status of juvenility has
not been determined in accordance with the
provisions contained in Sub-rule (3) and
the Act, requiring dispensation of the
sentence under the Act for passing
appropriate order in the interest of the
juvenile in conflict with law."

13. A bare perusal of aforesaid section
clearly reveals that the Court concerned shall
make an enquiry with respect to determining
the juvenility of an accused on the date of
commission of the offence and in that process
it can take such evidence as may be necessary
so as to determine the age of such person and
shall record a finding whether the person is
juvenile or child or not, stating his age as
nearly as may be.

14. Hon'ble Supreme Court has
expounded in the matter of Jitendra Singh
alias Babboo Singh and Anr v. State of
U.P, (2013) 11 SCC 193 that claim of
juvenility can be raised by a person at any
stage and in case, Court finds that the person
is juvenile on the date of commission of
offence, it has to forward the juvenile to the
Board for passing appropriate order. The
relevant paragraphs 81 and 82 of the
aforesaid judgment are quoted below :

"81. The matter can be examined
from another angle. Section 7-A(2) of the
Act prescribes the procedure to be followed
when a claim of juvenility is made before
any court. Section 7- A(2) is as under:

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

(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
order,
and
the
sentence if any, passed by a court shall be
deemed to have no effect."

82. A careful reading of the
above would show that although a claim of
juvenility can be raised by a person at any
stage and before any court, upon such
court finding the person to be a juvenile on
the date of the commission of the offence, it
has to forward the juvenile to the Board for
passing
appropriate
orders
and
the
sentence, if any, passed shall be deemed to
have (sic no) effect. There is no provision
suggesting,
leave
alone
making
it
obligatory for the court before whom the
claim for juvenility is made, to set aside the
conviction of the juvenile on the ground
that on the date of commission of the
offence he was a juvenile, and hence not
triable by an ordinary criminal court.
Applying the maxim expressio unius est
exclusio alterius, it would be reasonable to
hold that the law insofar as it requires a
reference to be made to the Board excludes
by necessary implication any intention on
the part of the legislature requiring the
courts to set aside the conviction recorded
by the lower court. Parliament, it appears,
was content with setting aside the sentence
of imprisonment awarded to the juvenile
and making of a reference to the Board
without specifically or by implication
requiring the court concerned to alter or
set aside the conviction. That perhaps is the
reason why this Court has in several
decisions simply set aside the sentence
11 All. Rajesh Kumar Vs. State of U.P. & Anr.
287
awarded to the juvenile without interfering
with the conviction recorded by the court
concerned and thereby complied with the
mandate of Section 7-A(2) of the Act."

15. In the matter of Abuzar Hossain
vs. State of West Bengal, reported in
(2012) 10 SCC 489, a three Judges Bench
of Hon'ble Supreme Court has summarized
the law relating to juvenility as to how and
when it can be claimed by a person. The
relevant paragraph 39 of the said judgment
is quoted below :

"39. Now, we summarise the
position which is 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.

39.2. 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.

39.3. 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) 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 Sheikh and Pawan these
documents were not found prima facie
credible while in Jitendra Singh the
documents viz., school leaving certificate,
marksheet 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 7A and order an enquiry for
determination of the age of the delinquent.

39.4. 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.

39.5. 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
288 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

39.6. 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."

16. Learned Court below has illegally
partly applied the provisions of J.J. Act,
2015
to
assess
the
ability
of
the
revisionist/accused to understand the nature
of crime and declined to treat him as a
juvenile. It is an admitted fact that date of
occurrence is 04.05.2012, therefore, J. J.
Act, 2000 should have been applied in the
present matter. There is no provision in J.J.
Act, 2000, in determining the juvenility,
with respect to assessment of mental and
physical capacity of an accused to commit
such offence as well as his ability to
understand the consequences of the offence
and the circumstances in which he
allegedly committed the offence.

17. Under the newly inserted Section
7-A to the J.J. Act, 2000, it is made
obligatory to the court that, after enquiry, if
it finds a person to be juvenile on the date
of commission of offence, it shall refer the
matter to the Juvenile Justice Board for
passing appropriate orders as per the
provisions of law. Provisions as contained
in Section 7-A read with Rule 12 of J. J.
Rules, 2007, clearly reveals that after
enquiry, in case the person is considered as
juvenile he should be given benefit of the
Act.

18. Learned counsel for the opposite
party no.2 has not made any comment qua
the enquiry conducted by the Court below
in determining the age of the accusedrevisionist. It appears that respondent
no.2/first informant is satisfied with respect
to the date of birth and age of the accused
as determined by the Court below.

19. In view of the settled legal
proposition and the discussions made
above, present revisionist is entitled to
benefit of J.J. Act 2000, inasmuch as, on
the date of occurrence i.e. 4.5.2012, he was
below 18 years of age. The trial Court, after
discussing the documents and statements
made by the witnesses, came to the
conclusion that the accused/revisionist was
below the age of 18 years on the date of
occurrence.

20. In the present matter, once the
Court below has completed its enquiry after
discussing the relevant documents and
statements of the witnesses that the
revisionist/accused is less than 18 years of
age, it has no option but to refer the matter
to the Board, for passing appropriate
orders, as provided in Section 7-A of J.J.
Act, 2000. Juvenility of the present
revisionist has illegally been denied by
applying the provisions of J.J. Act, 2015 on
the ground that he was capable of
understanding the consequence of the
offence and circumstances in which he had
allegedly committed the offence.

21. In the light of the facts and law as
discussed above, impugned order passed by
the Court below is not sustainable and is
liable to be quashed.
11 All. Rajbahadur Singh Vs. State of U.P. & Ors.
289

22. In the result, this revision is
allowed.
Impugned
order
passed
22.11.2019 passed by Additional Sessions
Judge/Fast Track Court, Court No.2,
Aligarh in Sessions Trial No.961 of 2012
arising out of Case Crime No.189 of 2012,
is quashed. Matter is remitted to the Court
below for taking appropriate action under
the provisions of law as embodied under
Section 7-A(2) of J.J. Act, 2000.

23. Certify this judgment to the lower
Court immediately for information and
necessary compliance.
----------
(2020)11ILR A289
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.09.2020

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

Criminal Revision Defective No. 411 of 2020

Rajbahadur Singh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Anil Kumar Mishra

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

A. Criminal Law - Code of Criminal
Procedure,
1973-
Section
397/401
-
Indian Penal Code, 1860-Sections 379,
504, 505-challenge to-misuse of process
of
law
u/s
204(4)
Cr.P.C.-accused
successfully
evaded
appearance-nonpresence of accused should have been
procured by way of invoking procedure
u/s 87 of the Cr.P.C.-instead of that,
learned Magistrate dismissed the matter
of the complainant at the stage of
issuance of bailable warrant- revision
against
summoning
order
was
also
dismissed,
despite
that
accused/Subinspector did not appear-at the stage of
seeking the presence of accused, the
presence of complainant was not at all
necessary-Once,
the
summons
was
already sent, there was no necessity of
paying further court fees.(Para 3 to 10)

In the present matter, there is a clear misuse of
process of law by the accused who even after
coming to know that summons were issued and
revision was dismissed, did not appear before
the court and strange enough the learned
Magistrate dismissed the complaint at the stage
of bailable warrant. There was no question of
affixing process fees, once the process fees has
been affixed, it is the duty of the police
authority to procure the presence of the
accused.
The
accused
was
shielded
by
Superintendent of Police even after noticed, no
action was taken by him.(Para 6 to 8) (E-6)

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Delay in filing the revision has
been condoned vide order of the date
passed on delay condonation application.

2. This revision has been preferred
against the order dated 13.8.2018 passed by
the Chief Judicial Magistrate, Moradabad
in Complaint Case No. 10657 of 2012.

3. The factual matrix in short is that
the complainant is a practising advocate
and he complained to the Chief Judicial
Magistrate, Moradabad about commission
of offences under Section 379, 504 and 505
of Indian Penal Code, 1860 (hereinafter
referred to as 'IPC'). His statement was
recorded as per Section 200 of Code of
Civil Procedure, 1973 (hereinafter referred
to as 'Cr.P.C.') and that of the witness under
Section 202 of Cr.P.C. The Court issued
summons to the accused. Against the
summoning order, instead of appearing
before the Court below one Jaibhagwan