IRFAN ALIAS SADDAM Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned counsel for the revisionist and learned AGA.

(2.) The facts in brief are that in reference to an incident which took place on 25.3.2010 at about 7:30 A.M., an FIR was lodged on the same day at 8:15 a.m. by complainant Mohd. Riyaz Khan against Naim Ullah, Imran alias Immi and the present accused revisionist. The revisionist was produced before the Magistrate, Juvenile Justice Board, Sultanpur as he pleaded minority in respect of himself. The evidence was adduced before the learned Magistrate and after conclusion of the evidence, learned Magistrate proceeded to hold that the revisionist was about 22 years of age at the time of occurrence. Aggrieved with the said order, revisionist preferred a criminal appeal in the Court of learned Sessions Judge under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short the Act). The appeal was filed before the learned Sessions Judge on 3.6.2011 and was heard on 29.6.2011. The parties appeared before the learned Sessions Judge and put forward their claim. Learned Sessions Judge after appreciating the argument of the parties, dismissed the appeal of the revisionist on technical ground saying that the appeal was not maintainable as against the order passed by the Magistrate, it was only revision, which was maintainable in view of the law propounded by the Apex Court in the case of Jabar Singh v. Dinesh Chandra, 2010 3 SCR 353.

(3.) Submission of learned counsel for the revisionist is that Section 52 of the Act clearly contemplates filing of an appeal against any order of the Magistrate and Section 53 of the Act contemplates entertainment of revision by the High Court. Thus, he submits that in view of the clear provision contained in the Act, learned Sessions Judge has misdirected himself in referring a finding that the revision was maintainable. It is also submitted that Jabar Singh (supra) also does not lay down the aforesaid proposition but in fact in the said case a revision was filed against the trial Court's order before the High Court and the accused was never presented before the competent authority i.e. Juvenile Justice Board and the aforesaid fact has been dealt with in the said case. The Apex Court observed in reference to the proceedings initiated for determination of juvenality before the trial Court that Section 49 of the Act thus contains no provision prohibiting the Court to determine the claim of juvenality if raised and in reference to Section 49 of the Act, it was held by the Apex Court that a plain reading of Section 52 of the Act shows that no statutory appeal is available against any finding of the trial Court that a person was not juvenile at the time of commission of the offence. Learned counsel submits that the said observation has been made in reference to the trial Court's order but not in reference to the proceedings before the Juvenile Justice Board. Learned Sessions Judge has totally misdirected himself in relying upon the said decision and dismissing the appeal of the revisionist.