Criminal Revision No.1995 of 2008 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: November 26 , 2008 Vinod .....Petitioner VERSUS State of Haryana ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Deepak Nayar, Advocate, for Mr.Ashok Giri, Advocate, for the petitioner. Mr.Yashwinder Singh, AAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner stands convicted for an offence under Section 16(1)(a) of Prevention of Food Adulteration Act, 1954. He is sentenced to undergo RI for six months coupled with fine of Rs.1,000/-. He has un-successfully filed an appeal before the Addl.Sessions Judge, Panipat. He has accordingly impugned the order of his conviction passed by Chief Judicial Magistrate, Panipat and up-held by Addl.Sessions Judge, Panipat through the present Criminal Revision No.1995 of 2008 : 2 : revision petition. The facts, in brief, are that on 28.10.1998, Shri K.K.Sharma, Government Food Inspector along with Dr.V.K.Malhotra, District Health Officer intercepted the petitioner near Spicy Delight Fast Food, Panipat on his motor-cycle when he was found in possession of 15 Kgs. of buffalo's milk. This was carried in a drum for the purpose of public sale. A sample was demanded in terms of the procedure by serving a notice in Form-IV. Thereafter, the Food Inspector purchased 750 mls. of milk, which was divided into three equal parts and put in three dry, clean and empty bottles. After adding 20 drops of formation in each bottle as preservative, the bottles were tightly sealed with the seal of Medical Officer. The bottles were also secured by means of strong twine and sealed with the seal of Medical Officer. The milk was sent to Public Analyst, Haryana for analysis. Opinion was received to the effect that the sample contained 4.9% milk fat against the minimum specified limits of 6.00% as laid down for buffalo milk. Accordingly, the complaint was filed against the petitioner on 30.1.1999. After prosecution, the petitioner was convicted and sentenced as already noticed. Notice of motion in this case was issued primarily on the ground that the court did not consider the grant of probation to the petitioner, though he was entitled to be considered for grant of such relief being 15-1/2-16 years of age on the date of occurrence. The learned counsel for the petitioner has referred to the averment in the revision petition and the school leaving certificate produced by the petitioner showing his date of birth to be 15.5.1983. The petitioner had attended the school upto 31.10.1995 and at the time of leaving Criminal Revision No.1995 of 2008 : 3 : the school, he was studying in 8th class. This fact, as mentioned in the revision about the date of birth of the petitioner, does not appear to be in any dispute. If this date is the date of birth of the petitioner, then it is clear that he was aged 15-1/2 years on the date of incident, i.e., 28.10.1998. The petitioner accordingly was juvenile on the date of commission of offence, but has not been tried by Juvenile Court. Trial of a juvenile by ordinary criminal court would be without jurisdiction. Though the counsel has raised this plea to seek benefit of probation for the petitioner, but if the petitioner is found to be of age less than 18 years on the date of commission of offence, he was entitled to be tried by the Juvenile Court. As per Section 20AA of the Prevention of Food Adulteration Act, the provisions of Probation of Offenders Act, 1958 or Section 360 of the Code of Criminal Procedure is not to apply to a person convicted of an offence under this Act unless that person is under 18 years of age. Obviously, the person convicted of an offence under this section, if found under 18 years of age, could be directed to be released on probation. The connected issue, thus, would arise to see whether this trial of the petitioner, who concededly is juvenile could be so held by ordinary criminal court or not. Though the petitioner has not raised any such plea to challenge his conviction, but once this fact has come to the notice of this court while exercising the revisional jurisdiction, it will be well within the powers of this court to suo-motu take this aspect into consideration for which the court has the necessary jurisdiction under Section 397 Cr.P.C. This Section leaves wide discretionary jurisdiction to be exercised by the High Court and Court of Sessions to call for and examine the record of any proceeding before any Criminal Revision No.1995 of 2008 : 4 : inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself and himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. In addition to the revisional power available to the court under Code of Criminal Procedure, Section 38 Juvenile Justice Act, 1986, gives revisional power to the High Court to call for record of any proceedings, at any time, either of its own motion or on an application received in this behalf for the purpose of satisfying itself as to the legality or propriety of any order passed by competent authority or Court of Sessions and may pass such order in relation thereto as it thinks fit. I am of the view that it would be a fit case where this court may exercise suo-motu revisional jurisdiction and see if the trial of the petitioner, as held by ordinary criminal court, would suffer from any error of jurisdiction, so as to call for interference. Perusal of the provisions of the Juvenile Justice Act would clearly show that juvenile, if accused of offence, has to receive a different procedural treatment for enquring the offence, trial and punishment thereof. The approach appears to be curative and not punitive. The act has been enacted with an approach aimed at reforming the delinquent child/juvenile. If a person is found to be juvenile then he is entitled to be dealt with under Sections 21 and 22 of the Juvenile Justice Act. Thus, a juvenile can be allowed to go home after advice or admonition; can be released on probation; can be sent to a special home etc. The petitioner has been tried by an ordinary criminal court, but there is now material on record to show Criminal Revision No.1995 of 2008 : 5 : that he was juvenile at the time of commission of the offence. What procedure now is to be followed, would be a question. Section 32 of the Act, regulates the procedure in regard to presumption and determination of age. It provides that when it appears to competent authority that a person brought before it under any of the provisions of this Act is a juvenile, the competent authority shall make due enquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is juvenile or not. This may be necessary because trial without holding such enquiry is vitiated. (See Bandela Ailaiah Vs. State of A.P.through Public Prosecutor, 1995 Cri.L.J.1083). It is also held that where it appears to competent authority that accused produced before it juvenile, the competent authority is bound to conduct inquiry regarding age of the accused. Normal rule is that a plea unless it goes to the very root of the jurisdiction should not be allowed to be taken at the appellate stage. As held in Krishna Bhagwan Vs. State of Bihar, AIR 1989 Patna 217, a plea that the accused in question was child within the meaning of the Act can be entertained at the appellate stage. It is also held in Krishna Bhagwan's case (supra) that it is not only the juvenile court which can exercise the power of determination of age under Section 32, but also the High Court and Court of Sessions can exercise the same powers. Thus, this aspect can certainly be gone into at this stage by the High Court while exercising its revisional jurisdiction. Rather, in view of law laid down in Bandela Ailaiah's case (supra), this court may be considered bound to conduct inquiry as the trial Criminal Revision No.1995 of 2008 : 6 : would be vitiated if the petitioner is juvenile but is tried by an ordinarily criminal court. Reference may also be made to the case of Jitendra Ram @ Jitu Vs. State of Jharkhand, 2006(3) RCR (Criminal) 165, wherein the plea of the appellant being juvenile was permitted to be raised for the first time before the Hon'ble Supreme Court. In fact, it was the sole contention to challenge the conviction of the appellant urging that he was minor within the meaning of provisions of Bihar Children Act, 1982. The submission in this case was that it was the Juvenile Court alone which was competent to pass an order against the appellant and in that view of the matter, the entire judgment of conviction and sentence passed against the appellant would be vitiated in law. The Hon'ble Supreme Court observed that statute has imposed a duty upon the competent authority to make an enquiry as to the age of that person who appears to be a child to him, finding that no such enquiry was made and that the provisions of a beneficial legislation should ordinarily be given effect to. The Hon'ble Supreme Court while allowing the appeal remitted the matter to the Sessions Court with the direction to consider the matter as regard to the age of the appellant as on the date of commission of the offence. This course was adopted by the Hon'ble Supreme Court while following Krishna Bhagwan's case (supra) and after finding that no certificate of date of birth of the appellant or any other proof as regard to his date of birth was available on record. Even there was no material, apart from the estimation of the court which was brought to the notice of the Hon'ble Supreme Court. That may not be a situation in the present case. Here the school leaving certificate regarding the age of the petitioner Criminal Revision No.1995 of 2008 : 7 : is on record. It may, thus, be not necessary to remand the case back either to the trial court or the lower Appellate Court. Question then may be about the nature of enquiry which the High Court would be called upon to hold. It is held in Mumtaj Ahmad Vs. The State of U.P., 1995 ALL. L.J. 1491 that where High Court is satisfied in prima facie manner that on the date of commission of offence the accused may be a child or juvenile, the High Court may direct competent authority to determine age on relevant date in accordance with Section 32. The section may contemplate full dress enquiry about age and mere appearance is not safe test, yet in this case a school leaving certificate is placed on record which would show in more than prima facie manner that on the date of commission of offence, the petitioner was juvenile. This should be a sufficient proof about the age of the petitioner on the date of the incident which was 15-1/2 years. There are precedents which can be noticed that where school leaving certificate on record showed that on the date of incident accused was juvenile and medical certificate showed him to be of different age, the court directed Juvenile court to rely upon school leaving certificate in the absence of any material on record showing infirmity in school leaving certificate. In the case of Krishna Bhagwan (supra), it is noticed by the Full Bench that:- “there may be a case where either in the first information report itself the accused might have been described as below 16 years of age or during the trial his age has been determined or admitted to be below 16 years on the date of occurrence. In such cases no further enquiry in respect Criminal Revision No.1995 of 2008 : 8 : of his age is called for and appellate court can extend the benefit of the Children/Juvenile Act to such an accused.” In other cases, enquiry may be called for where there is even no material which would indicate in prima facie manner that an accused is juvenile then enquiry may be called for. As already noticed, the petitioner has produced on record his school leaving certificate giving his date of birth to be 15.5.1983. He was, thus, 15-1/2 years old on the date of occurrence. This fact is not in dispute by the State. This case, thus, may not call for any enquiry to determine the age of the petitioner. The benefit on account of this can be extended to the petitioner by this court. Since there is sufficient proof about the age of the petitioner on the date of incident which was 15-1/2 years, the petitioner was concededly a juvenile on the date of commission of offence and as such could not have been tried by ordinary criminal court. Even if he had committed any offence, the petitioner was required to be tried by Juvenile Justice Board and his trial by ordinary criminal court would suffer for want of jurisdiction. The conviction and the sentence as awarded to the petitioner, as such, cannot be sustained. Ordinarily, the case may have warranted consideration whether the petitioner is to be put to re-trial before Juvenile Justice Board as the original conviction and sentence is being interfered with for want of jurisdiction. Having regard to the fact that petitioner has faced protracted trial since 1998, when he was 15-1/2 years and has suffered enough while facing this prosecution and the sentence staring at him, it would not be fair now to direct his trial before a Juvenile Justice Board. Even if that course was to be adopted, the Criminal Revision No.1995 of 2008 : 9 : end result would not make any difference. The petitioner even if tried as a juvenile would not be liable to be sentenced, which he has faced for quite some time. The benefit of the provisions can even be extended to him by this court, if need be. The conviction and sentence awarded to the petitioner is therefore set-aside and the present revision is allowed. November 26, 2008 ( RANJIT SINGH ) ramesh JUDGE