MAKSUDAN GOND Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Avijit Saxena, learned counsel for the applicant, learned A.G.A for the State and perused the record.

(2.) The instant petition has been filed under Sec. 528 BNSS with a prayer to quash the impugned order dtd. 3/3/2020 passed by the Additional District & Sessions (F.T.C-I), Deoria, u/s 9(2) of Juvenile Justice Act (Care and Protection of Act), 2015 (hereinafter referred to as 'Act') and the consequential Order dtd. 30/5/2022 passed by the Juvenile Justice Board, Deoria in S.T. No. 219/2019 arising out of Case Crime No. 135/2019 under Sec. 498A, 304B IPC and 3/4 DP Act, Police Station Khampar, District Deoria and remand back the matter before learned Additional District & Sessions Judge (F.T.C-I), Deoria.

(3.) The bone of contention of the present matter is whether the impugned order passed on an application claiming the Juvenility under Sec. 9(2) of the Act which does not take the claim by conducting an enquiry and recording the positive finding, but instead mechanically refering the matter to the Juvenile Justice Board is lawful or not? As per the contention submitted by the learned counsel for the applicant, the said impugned order, assailed by way of the instant petition is illegal and has been passed without jurisdiction. Sec. 9 (2) of the Act mandates that where a claim of juvenility is raised before a Court other than Board, the Court "shall make an enquiry, take such evidence as may necessary.........., and shall record the finding in the matter, stating the age of the person as nearly as may be". The aforesaid legal provisions is imperative and the duty casted upon the Courts by the aforesaid provision of law is mandatory, adjudicatory and non delegable. During the course of the argument, learned counsel for the applicant relied on a Habeas Corpus Writ Petition No. 497 of 2025 (Pawan Kumar(Corpus) and Another Vs. State of U.P and 4 Ors.) delivered on 25/9/2025 wherein the Division Bench of this Court held that Sec. 9 of the Act shows that if a person accused of committing an offence, claims before the Court that he was juvenile on the date of commission of the offence, the Court shall make an enquiry and after taking such evidence as may be necessary, determine the age of the person and shall record a finding on the matter stating the age of the person as nearly as may be. The aforesaid view of the Division Bench of this Court finds support by the decision of the Hon'ble Supreme Court in the case of Rishipal Singh Solanki Vs. State of U.P. and Ors., 2022 8 SCC 602.