Court No. - 49
Case :- APPLICATION U/S 482 No. - 32140 of 2018 Applicant :- Rajepal Opposite Party :- State Of Up And Another Counsel for Applicant :- Manvendra Singh Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the applicant and learned AGA for the State.
2. The present application has been filed to quash the order dated 07.08.2018 passed by VIII Additional Sessions Judge/Special Judge (POCSO Act), Fatehpur in Special Trial No. 135 of 2017 (State Vs. Rajepal), arising out of the Case Crime No. 366 of 2016, under Sections 363, 366, 376, 120B, 498 I.P.C., and 3/4 POCSO Act, Police Station Jahanabad, District Fatehpur. By that order, learned court below had rejected the application of the applicant seeking determination of his age as per the medical opinion.
3. Learned court below had rejected the application for the reasons that (i) no plea had been set up by the applicant to claim juvenility during investigation; (ii) the applicant had not produced any school certificate or certificate issued by the local authority in support of his age and; (iii) referring to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, it has been observed that the application filed by the applicant carries no weight, it is accordingly dismissed.
4. Learned counsel for the applicant submits that the plea of juvenility may be set up at any stage, including at the stage of appeal. Therefore, the learned court below has erred in rejecting the application for the reason that the applicant had not set up such a plea during investigation. It has been further submitted that the absence of school certificate or certificate issued by the local authority with respect to the date of birth is not mandatory under Section 94 of the Act to obtain a medical opinion as to the age.
5. The aforesaid argument of the learned counsel for the applicant has been noticed to be accepted. There can be no quarrel with the proposition that a plea of juvenility may be set up at any stage of a proceeding, the fact that the applicant had not raised such plea during investigation is of no consequence.
6. On the other hand, the applicant having clearly set up the plea at the stage of trial itself, the learned court below is obliged to conduct such enquiry as is mandatory under the Act.
7. As to the second submission, that too has to be accepted in view of the clear language of Section 94 of the Act. However, such plea is being accepted with the caveat that it will remain open to the prosecution or to the informant to set up a contrary plea based on either a school leaving certificate or certificate issued by the local authority to resist the claim of juvenility being raised by the applicant in which case the matter will have to be decided in accordance with Section 94 of the Act.
8. Considering the above, no useful purpose would be served in keeping the present petition pending any further. The order dated 07.08.2018 is hereby set aside and the matter is remitted to the concerned learned court below to pass a fresh and proper order. The above exercise may be completed as expeditiously as possible, preferably within a period of one month from the date of production of a certified copy of this order.
9. With the aforesaid direction, the application is finally disposed of.
Order Date :- 19.9.2018 Prakhar