# Ram Karan and Anr v. State of U.P

- **Citation:** (2019) 1 ILRA 921
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-02
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-karan-and-anr-v-state-of-u-p-44503
- **Pages:** 6

## Headnote

of Children) Act,2000-Sections 7, 7A, 9,
64 and Juvenile Justice (Care and
Protection of Children) Rules 2007Clause 12 sub clause 3 - Application-
Claim to be juvenile-rejection- issue of
juvenility Since, on date of occurrence
i.e. 08.11.1999, as per High School mark
sheet, hence, he was juvenile-
(Paras 4, 5 & 11)

Application allowed.

Case Law Discussed:-
2016(9) ADJ 627 (E-6)

## Text

1 All. Ram Karan and Anr. Vs. State of U.P.
921

(viii)
the
complainant
immediately informed to the police;

(ix) as per postmortem report
maggots were found over the body, doctor
A.K. Tyagi (PW-4) opined that the
deceased might have died about 3-5 days
prior to the postmortem;

(x) no information regarding
death of the deceased was given to her
father or brother and death was concealed
for about three days;

(xi) appellants/accused persons
concealed the death of deceased;

(xii) the body was found in the
house of the appellants and they all were
living in the same house;

(xiii) in viscera report malathion
(organophosphate insecticide) was found,
which is a poison;

(xiv) no acceptable explanation
has been given by the appellants as to
how the deceased, Meena died;

(xv) the appellants in their
statement under Section 313 of Cr.P.C.
simply stated that the deceased might
have consumed poison by mistake but no
such defence was taken in the crossexamination of prosecution witnesses.

42. In view of the above circumstances,
we are of the considered opinion that
circumstances in the present case are of
conclusive nature, read with Section 106 of
the Indian Evidence Act, 1872 fully
establishes the guilt of the appellants-accused
persons. In fact, the chain of evidence is so
complete as not to leave any reasonable
ground for a conclusion consistent with the
innocence of both the appellants. The
aforesaid circumstances show that the act of
murder had been committed by the appellants
only.

43. Consequently, the present appeal
being bereft of merit is dismissed.

44. The trial court record along with
a copy of this judgment be sent to trial
court forthwith.

45. The appellant, Shiv Kumar is in
judicial custody. A copy of this judgment
be also sent to the appellants through
Superintendent
Jail
concerned
immediately.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.09.2019

BEFORE
THE HON'BLE KARUNESH SINGH PAWAR, J.

CRIMINAL APPEAL No. 2057 OF 2007

Ram Karan and Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Akhtar Abbas, Sri Bhanu Dutt Dwivedi,
Sri Sanjay Kumar Yadav, Sri Syed Husain
Abbas.

Counsel for the Opposite Party:
G.A., Sri Kaushal Kishore Tewari

A. Juvenile Justice (Care and Protection
of Children) Act,2000-Sections 7, 7A, 9,
64 and Juvenile Justice (Care and
Protection of Children) Rules 2007Clause 12 sub clause 3 - Application-
Claim to be juvenile-rejection- issue of
juvenility Since, on date of occurrence
i.e. 08.11.1999, as per High School mark
sheet, hence, he was juvenile-
(Paras 4, 5 & 11)

Application allowed.

Case Law Discussed:-
2016(9) ADJ 627 (E-6)

(Delivered by Hon'ble Karunesh Singh
Pawar, J. )
922 INDIAN LAW REPORTS ALLAHABAD SERIES

Re: C.M. Application No. 75877 of
2019

1. Heard learned counsel for
appellants and learned A.G.A. for the
State.

2. This application has been filed
for declaring appellant No.2 as juvenile
under Section 9 of Juvenile Justice
(Care and Protection of Children) Act,
2015

3.

Learned
counsel
for
applicant/appellant No.2 has submitted
that applicant No.2 has appeared in High
School Examination, 1998 conducted by
U.P. Board. It is further submitted that in
the High School Certificate issued by the
U.P. Board, the date of birth of the
applicant is recorded as 06.05.1983.

4. It is next submitted that the
occurrence of the crime is on 08.11.1999.
It is further submitted that the age of the
deponent/applicant No.2 on the date of
occurrence as per high school certificate
issued by the U.P. Board annexed at
Annexure No.1 to the application is 16
years 6 months and 2 days. Hence it is
contended that at the time of the incident
deponent/applicant No.2 was juvenile.
The deponent/appellant No.2 has given
application in trial court for declaring him
juvenile on 06.08.2007. The trial court
vide order dated 03.09.2007 rejected the
application of the juvenile given by the
appellant No.2. Learned counsel for the
appellant No.2 further submitted that
Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred
to as 'Act, 2000') was enacted. He further
submitted that Section 7-A lays down the
procedure to be followed by the claim of
the juvenility as raised before any court.
The relevant Section 7-A is reproduced
hereinbelow:

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

5. Learned counsel for appellant No.2
further submitted that Juvenile Justice (Care
and Protection of Children) Rules, 2007
(hereinafter referred to as "Rules, 2007") were
framed under the Act, 2000 and clause 12, sub
clause 3 of Rules, 2007 provides the
procedure to be followed in determination of
age. The relevant clause 12 sub clause 3 is
reproduced as under:

"12. Procedure to be followed in
determination of Age- (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
1 All. Ram Karan and Anr. Vs. State of U.P.
923
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."

6. It is next submitted that as per the
clause
12(3)(a)(i)
in
every
case
concerning a child or juvenile in conflict
with law, the age has to be determined
after conducting an enquiry by the Court
or Board or, as the case may be, by the
Committee. The qualification provided in
Act, 2000 is matriculation or equivalent
certificates, if available.

7. Learned counsel for the appellant
No.2 lastly submitted that learned trial court
while rejecting the claim of juvenility has
given a specific finding that P.W.1 produced
the high school mark-sheet of the appellant
No.2 and according to that appellant No.2
was juvenile. However learned trial court
entered into hypertechnical approach and as
such has rejected the application for
declaring the juvenile of the appellant No.2
even after giving such finding.

8. In this context, learned counsel
for appellant No.2 as well as learned
A.G.A. for the State has drawn the
attention of the Court towards Full Bench
Judgment of this High Court in Jai
Prakash Tiwari Vs. State of U.P. and
another, 2016 (9) ADJ 627. The relevant
Paragraph
23
of
the
judgment
is
reproduced hereinbelow:

"23. The relevant provisions
governing the procedure to be followed in
determination of age of a juvenile in
conflict with law is contained in Rule 12,
which provides for as follows:

"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.
924 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.

(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."

9. Learned counsel for appellant
No.2 while rebutting the submission has
drawn the attention of the court towards
provision of Section 7-A read with clause
12 sub clause 3 of Act, 2007 and
submitted that this Court if it is of the
opinion that the accused person was
juvenile on the date of commission of
occurrence, the Court shall make an
enquiry in terms of Section 7-A sub
Section 1 read with procedure provided
under Sub Rule 3 Rule 12 of the Act,
2007 and in support of this he has drawn
attention of the Court towards Full Bench
Judgement of this Court in Sher Singh @
Sheru Vs. State of U.P. passed in
Criminal Appeal No. 1883 of 2013 vide
1 All. Ram Karan and Anr. Vs. State of U.P.
925
order dated 21.09.2016 in which while
answering the issue No. II the court has
held as under:

"Accordingly, the reference in
question is answered as follows:

Issue no.I

"Whether the right of a juvenile
to raise the issue of juvenility can be
denied, by dismissing a writ petition as
infructuous and then permitting him to
raise the issue in a criminal appeal when
the same issue had been raised before the
Juvenile Justice Board and an appeal had
been decided in accordance with Section
52 of the 2000 Act as in the present case,
on applying the doctrine of finality?"

The right of a juvenile to raise
the issue of juvenility cannot be denied by
dismissing
the
Writ
Petition
as
infructuous and in case Writ Petition in
question has been filed though wrongly,
the issue can be raised in Criminal
Appeal even though the same has been
raised before the Juvenile Justice Board
and appeal has been decided under
Section 52 of the 2000 Act once it is
demonstrated before the Court that the
issue of juvenility has not been answered
on the parameters of Sub-Rule 3 of Rule
12 of the 2007 Rules.

Issue no.II

"Whether the law laid down by
prescribing a procedure of allowing the
question to be raised in a criminal appeal
as an alternate substitute through a
miscellaneous
application
under
the
judgment dated 13.10.2014 by the learned
Single Judge is correct or not?"

Once the issue of juvenility has
not been decided on the parameters of
provisions as are contained under SubRule 3 of Rule 12 of 2007 Rules, then such
an issue can be examined by the
Competent Criminal Court either on its
own and even on a miscellaneous
application being moved.

Issue no.III

"Whether in view of the law laid
down by the Apex Court particularly in
the case of Abuzar Hossain @ Gulam
Hossain (supra) and Abdul Razzaq Vs.
State of U.P. (supra), the issue presently
raised, would also stand covered by the
ratio and the observations made
therein or not ?"

10. Learned A.G.A. has submitted that
once the application of the appellant No.2 was
rejected by the trial court the appropriate
course was to challenge the order of trial court
in revision. Therefore, the application is not
maintainable.

11. The trial court has rejected
the application on 03.09.2007 and the
Rules, 2007 have come in force on
26.10.2007.

12. This Court has further noticed
that sub Rule 6 of Rule 12 of 2007 Rules
which provides the provisions contained
in this Rule was also for those cases
which have been disposed off cases such
as appellant No.2 where the status of
juvenility has not been determined in
accordance with the provision contained
in sub Rule-3 of Rule 12 of 2007 Rules, then
as per the judgment of Full Bench of this
Court in Sher Singh @ Sheru (supra) as the
issue can be examined by the competent
criminal Court either on its own motion on
an application moved by the accused. In the
present case, the issue of juvenility regarding
the appellant No.2 has been wrongly decided
by the learned trial court and the application
has been rejected even after giving specific
finding in favour of the accused/appellant
No.2 and the trial court has unnecessarily
926 INDIAN LAW REPORTS ALLAHABAD SERIES
entered into hypertechnical things while
rejecting the application for juvenility which
is contrary to the procedure provided under
the Act.

13. Considering the aforesaid law
laid down by the Supreme Court as well
as the Full Bench of this Court, I am of
the view that on the date of occurrence i.e.
08.11.1999, the age of the appellant No.2
was 16 years 6 months and 2 days and
hence was juvenile.

14. The application is, accordingly,
allowed.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Civil Misc. Habeas Corpus Writ Petition No. 329 of 2019

Anil Bhati ...Petitioner
Versus
Union of India &Ors. ...Respondents

Counsel for the Petitioner:
Sri Brijesh Sahai, Sri Chandrakesh Mishra,
Sri Daya Shankar Mishra, Sri Vikas
Chandra Srivastava

Counsel for the Respondents:
A.S.G.I., Sri Annapurna Singh, Sri Vinay
Saran, Sri Shashi Bhushan

A. Bail order, doubting credibility of
prosecution evidence having potentiality
to influence mind of detaining authority
was relevant and ought to be placed and
considered by detaining authority.

Whether bail order of High Court is relevant
material
requiring
consideration
by
the
detaining authority and whether in absence of
such consideration, subjective satisfaction
stood vitiated - Due to non-application of mind
on relevant material, subjective satisfaction
stood vitiated - Detention order cannot be
saved u/s 5-A of N.S. Act and quashed. (E-1)

(Delivered by Hon'ble Manoj Misra, J.
& Hon'ble Mrs. Manju Rani Chauhan, J.)

1. We have heard Shri D.S. Mishra,
learned senior counsel assisted by Shri
Chandrakesh Mishra and Shri Vikas
Chandra Srivastava, for the petitioner;
Shri Shashi Bhushan, Advocate, holding
brief of Shri Annapurna Singh, for the
Union of India; Shri Vinay Saran, learned
senior counsel assisted by Shri Harikesh
Kumar Gupta, for the Intervenor; the
learned A.G.A. for the state respondents;
and have perused the record.

2. By means of this habeas corpus
petition,
the
petitioner
Anil
Bhati,
currently in Jail, has questioned his
detention under the National Security Act,
1980 (for short the Act, 1980) pursuant to
the order dated 05.12.2018 passed by the
District Magistrate, Gautambudh Nagar
(for short DM) under Section 3(2) read
with Section 3(3) of the Act, 1980, which
has
been
confirmed
by
the
State
Government vide order dated 22.01.2019
and, thereafter, the detention period has
been extended. The petitioner has prayed
that after setting aside the detention order
he be released.

3. A resume of relevant facts would
be apposite. From the return filed by the
Jailor, District Jail, Kaushambhi (for short
the Jailor), it appears, the petitioner Anil
Bhati was admitted in District Jail,
Muzaffarnagar on 17.03.2018 pursuant to
remand order dated 8.12.2017 issued by
the
Chief
Judicial
Magistrate,
Gautambudh Nagar in case crime no.751