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Mohammad Haneef v. State of U.P. - CRIMINAL APPEAL No. 730 of 1979 [1994] RD-AH 1 (1 April 1994)


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Criminal Appeal No.730 of 1979

Mohd. Harif   ..............................             Appellant


State of U.P.   ............................              Respondent

Hon. D.K. Trivedi, J.

Hon. Kundan Singh, J.

                           (Per Hon. Kundan Singh, J.)

In this appeal the main controversy of our difference of opinion centres round the question as to whether the appellant was child at the time of occurrence only on the basis of the age given by him in his statement recorded under Sec.313, Cr.P.C.  On behalf of the appellant for the first time the plea that he was a child at the time of occurrence was taken when his statement was being recorded by the Court under Section 313, Cr.P.C.  The Code of Criminal Procedure, U.P. Children Act or Juvenile Justice Act do not provide any manner or procedure for the determination of the age of any accused in investigation, enquiry or trial.  The Legislature has left this matter on the satisfaction of the court concerned.  So far as the burden of proof in this regard is concerned, the Evidence Act by Sec. 105 provides that in case any accused person claims any benefit either in general exception in Indian Penal Code or within any special exception or the proviso contained in any part of the same Code or in any law defining the offence is upon him and the court shall presume the absence of such plea.  The appellant in order to substantiate his plea that he was a child at the time of occurrence has not adduced any evidence or pointed out any circumstance to infer that he was child at the time of incident except making a bald statement under Sec. 313 Cr.P.C.  The Supreme Court in its recent decision in the case "Hari Om Versus State of U.P." reported in 1993 SCC (Crl.) 396 rejected the benefit claimed by the appellant while finding no material to establish that he was child except the certificate filed before it holding :

"As regards Rajiv Kumar, as the High Court had pointed out, no material was placed either during trial or before the High Court to establish that Rajiv Kumar was a child on the date of commission of the offence.  Therefore, it is too late in the day to produce a certificate before this Court and we reject the same."

The Supreme Court in another recent case "State of Haryana Versus Balwant Singh" reported in 1993 SCC (Crl.) 251 has ruled while setting aside the judgment of the High Court which found the respondent below 16 years of age only on the basis of the age mentioned in the statement recorded under Sec.313 Cr.P.C. in the following words :-

"Admittedly neither before the committal court nor before the trial court, no plea was raised on behalf of the respondent that he was a child and that he should not have been committed by the Magistrate and thereafter tried by the Sessions Court and that he ought to have been dealt with only by the court of Juveniles.  When it is not the case of the respondent that he was a child both before the committal court as well as before the trial court, it is very surprising that the High Court,  based merely on the entry made in Sec. 313 Cr. P.C. statement mentioning the age of the respondent as 17 has concluded that the respondent was a child within the definition of the Act on the date of occurrence though there was no other material for that conclusion.  This observation of the High Court, in our considered view, cannot be sustained either in law or on facts.  Hence, we set aside that finding of the High Court that the respondent was a child."

The general rule of law is that the latest declaration of law made by the Supreme Court, applicable to the facts and circumstances of the case, will be applied notwithstanding any earlier decision of the apex Court.  The two Supreme Court decisions noted above are directly on the point in issue.  It stands now settled conclusively by these decisions as to at what stage the accused can raise the plea of his being a child.  Mere mention in the statement recorded under Section 313 Cr.P.C. would  be insufficient to hold that the accused was a child at the time of the incident.

So far as the case of Shri Kishan alias Pandit Versus State of U.P. reported in 1992 S.C.C. (Crl.) 42, referred to by Hon. Trivedi,J., is concerned, the ration of decision of that case is not applicable to the facts and circumstances of the case in hand in as much as the Supreme Court on the material placed before the Court was satisfied that the accused Shri Kishan alias Pandit on the date of commission of the offence was nearly about 14 years but in the present case there is no material at all except the bald statement of the accused himself recorded under Sec.313 Cr.P.C. that he was a child at the time of occurrence.

Now the question as to whether the matter of difference of opinion should be referred to a third Judge or a larger bench is to be considered.  The provisions of Sections 272 and 392 of the Code of Criminal Procedure are relevant.  The proviso attached to Sec.393 lays down that if one of the Judges constituting the Bench or where the appeal is laid before another Judge under this section that Judge so requires, the appeal shall be re-heard by a larger Bench of Judges.

In connection with difference in the opinion of the Judges of a Division Bench this Court in the cases Virendra Kumar Rai Versus Union of India and others (1992 A.L.J.564) and Smt. Nirmal Swaran Singh Versus Raju Uddin and others (1993 A.L.J. 497), after considering the Full Bench, Special Bench cases, Rules of the Court and the Supreme Court case has held the reference to a third Judge ultra vires and the case was referred to a larger Bench for decision.

In view of the legal position mentioned above and also the fact that the question involved in the appeal is of general importance, I feel that this appeal may be referred to a larger Bench to have an authoritative decision on the issue that has germinated due to difference of opinion between me and my esteemed brother Trivedi,J.

Dt. April 1, 1994



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