Juvenile -X Vs State of U.P. and Another

Neutral Citation No. - 2023:AHC:182114

Court No. - 80

Case :- CRIMINAL REVISION No. - 4997 of 2022

Revisionist :- Juvenile -X Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rahul Saxena Counsel for Opposite Party :- G.A.,Ajai Kumar Mishra

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Hon'ble Subhash Chandra Sharma,J.

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Rejoinder affidavits filed by learned counsel for the revisionist which are taken on record.

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Heard learned counsel for the revisionist, learned counsel for the opposite party as well as learned A.G.A. for the State and perused the record.

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The present criminal revision has been preferred by the revisionist through his father with a prayer to allow this revision and set aside the judgment and order dated 07.09.2022 passed by the Additional Sessions Judge/ Special Judge (POCSO Act), Ghaziabad in Criminal Appeal No. 112 of 2021 (Computer Registration No. 120 of 2021) CNR No. UPGZ01016431 of 2021 (Shishir Kumar Malikshik Vs. State of U.P. & another), arising out of Case Crime No. 528 of 2021, under Section 363, 376 I.P.C., Police Station Sahibabad, District Ghaziabad.

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It is submitted by learned counsel for the revisionist that he was declared juvenile by the learned J.J. Board which was challenged before the learned session's court in which the children's court passed the order dated 07.09.2022 while setting aside the order passed by the learned J.J. Board and directed the medical examination of the revisionist for determination of claim of juvenility. He further contended that he was not given an opportunity of hearing before the learned appellate court before passing the order in question though in the order sheet it has been mentioned by the learned appellate court that notice was issued to the revisionist and service was sufficient, as a result on the presumption of service of notice the learned appellate court passed the order in question though he had no information regarding the present appeal. In this way, great prejudice is caused to him, therefore, request to set aside the order passed by learned appellate court and to afford an opportunity of hearing to him before the

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learned appellate court and allow the revision.

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Learned counsel for the opposite party as well as learned A.G.A. opposed the prayer as aforesaid and urged that in this case notice was issued to the revisionist and he received notice even though he did not appear before the learned appellate court that was the reason the order was passed in his absence. In this way, it cannot be said that service of notice was not sufficient on the revisionist and order was passed without giving an opportunity of hearing.

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From the facts and circumstances of the case, submissions made by learned counsel for both the parties as well as learned A.G.A. for the State, perusal of record and without going into the merit of the case, it appears that the order sheet present on record relating to the appellate court dated 28.03.2022 shows that the appellant was present but the opposite party No. 2/ revisionist was absent in spite of service of notice and the service was presumed to be sufficient. After hearing the appellant the appeal was decided by order dated 07.09.2022 while setting aside the order passed by the learned J.J. Board.

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In my considered opinion, it will be only wasting of time to go into the question as to whether notice was served upon opposite party/ revisionist properly or not. Since the revisionist could not get the opportunity of hearing before the learned appellate court though the order was passed against him and now he is present here, therefore, it would be expedient that an opportunity of hearing be also given to him before the learned appellate court and then order is to be passed on the basis of material on record. As a result, the order passed by the learned appellate court dated 07.09.2022 is set aside and the matter is remanded back to the learned appellate court to pass the order afresh after hearing both the parties within a period of 60 days from today.

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It is to note that no any unnecessary adjournment be granted to either of the parties.

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Accordingly, this criminal revision is, hereby, allowed .

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Order Date :- 20.9.2023 Suraj Srivastav

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Digitally signed by :- SURAJ SRIVASTAVA High Court of Judicature at Allahabad

Juvenile -X v. State of U.P. and Another

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Juvenile -X v. State of U.P. and Another

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