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2002 DIGILAW 1296 (PAT)

Durga Navratnanand Choudhary v. State Of Bihar

2002-11-27

S.N.PATHAK

body2002
Judgment S.N.Pathak, J. 1. This revision is directed against the judgment dated 23-11-2000 passed by Shri Mahendra Narain Singh, 3rd Additional Sessions Judge, Bhagalpur, in Cr. Appeal No. 48 of 1997 confirming the judgment of the trial Court dated 30-8-1997 rendered by the Judicial Magistrate, 1st Class, Bhagalpur in G.R. Case No. 2204 of 1985 Tr. No. 771 of 1997. Two of the revisionists namely Pancha Nand Choudhary and Durga Navratnanand Choudhary have been sentenced to three months SI and revisionists namely Smt. Savitri Devi and Kavita Nandani Choudhary were sentenced to pay a fine of Rs. 250.00 each and in default to undergo SI for 15 days. 2. It has been submitted by the revisionists lawyer that Durga Navratnanand Choudhary and Kavita Nandani Choudhary were minors on the date of occurrence i.e. on 4-6-1985 and hence they deserved no punishment from the trial Court. So far the other revisionists are concerned, they were already in their fifties so far age is concerned and now they have further advanced in age and hence a lenient view may be taken. Moreover, the original FIR and the fardbayan were not brought on the record, rather photo state copy of the came were exhibited. 3. Admittedly all the revisionists were convicted for the offence under Section 447 of the Indian Penal Code and the evidence adduced by the prosecution established the offence of u/s. 447 of the Indian Penal Code, so the finding of the trial Court and as confirmed by the appellate Court regarding the alleged trespass by the revisionists cannot be reversed in revision unless the findings are vitiated by illegalities or factual irregularities. I do not think there is any such infirmity in the evidence of the prosecution. So far the admission of photo copies of the FIR and farubayan is concerned, it has been stated in the judgment that the papers were torn and, therefore, photo copy copies were exhibited. There is no illegality in admitting the photo copies if the original FIR and fardbayan were torn or missing. 4. Of course, so far revisionists No. 1 Durga Navratnanand Choudhary and Kavita Nandani Choudhary are concerned, their ages recorded on 18-4-1995 as disclosed from their examination u/s. 313 Cr. P.C. indicate that they were minors on the date of occurrence (4-6-1985) so their case should have been separated and sent to the Juvenile Justice Court. 4. Of course, so far revisionists No. 1 Durga Navratnanand Choudhary and Kavita Nandani Choudhary are concerned, their ages recorded on 18-4-1995 as disclosed from their examination u/s. 313 Cr. P.C. indicate that they were minors on the date of occurrence (4-6-1985) so their case should have been separated and sent to the Juvenile Justice Court. However, now that the trial Court failed to abide by the provisions of Juvenile Justice Act, the trial conducted by the trial Court shall be treated to be an enquiry conducted by the Juvenile Justice Court. It am, therefore, of the opinion that now the trial conducted by the Judicial Magistrate shall be treated to be an enquiry in which the minor revisionist were found guilty, so at this stage specially in this revision, the order of conviction cannot be reversed unless it is vitiated by the illegalities and irregularities as mentioned above; but I am of the opinion that these revisionists namely Durga Navratnanand Choudhary and Kavita Nandani Choudhary shall legitimately be speared of the punishment. So far other revisionists are concerned, it has been submitted that they have remained in custody atlast for 12 days after surrender in the Court below and before release on bail by order from this Court. No previous conviction of the revisionists was also brought on the record of the case and they . were not given the benefit of sec. 360 Cr. P.C. or the Probation of Offenders Act. So far Kavita Nandani Choudhary and Savitri Devi are concerned, they had already deposited the fine imposed upon them vide receipt dated 1-3-2001, photo copies of which have been filed today and the original receipts are being returned to the Counsel, Ranjan Kumar Jha. 5. In view of the fact that the revisionists had already incarcerated for 12.days, I think the aforesaid period of confinement suffered by the revisionists shall be treated as the period of sentence. Affirming the order of conviction and with the above modification in the order of sentence this revision is dismissed. So far the fine paid by the minor accused Kavita Nandini Choudhary, is concerned, since she has been spared of the punishment, shall be entitled to refund.