Research › Search › Judgment

Punjab High Court · body

2011 DIGILAW 78 (PNJ)

Pardeep Singh v. State of Punjab

2011-01-07

JORA SINGH, SATISH KUMAR MITTAL

body2011
JUDGMENT Mr. Satish Kumar Mittal, J.: - Learned Single Judge of this Court has referred the following question of law for consideration by a larger Bench:- “Whether the Juvenile Justice Board has the jurisdiction to entertain an application under Section 319 of `the Code’ of Criminal Procedure for summoning a person as an additional accused who is not a juvenile?” 2. Before answering this question, it will be apposite to go to the backdrop of this case for the proper consideration and appreciation of the question. 3. In the present case, when the complainant (petitioner) was returning from his shop, accused Ajit Singh caught hold him from his long hair and his son Kamal gave a Chhura blow to him on the left side of his abdomen. Then accused Lucky (another son of Ajit Singh) gave a Chhura blow on the right side of his (complainant) abdomen and another blow on the left side of his back. In the meanwhile, Sukhdev Singh (PW) came there and other persons also collected there. The accused ran away from the spot. Thereafter, the complainant was taken to the hospital where on the basis of his statement, the FIR was registered against all the three accused under Sections 307, 324 read with Section 34 IPC. 4. During investigation, accused Ajit Singh, who was a police official, was declared innocent, and challan was filed against Kamal Singh and Lucky Singh. Since both accused Kamal Singh and Lucky Singh were juveniles, they were produced before the Juvenile Justice Board for trial in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ‘the Juvenile Justice Act’). 5. During the proceedings before the Juvenile Justice Board, after examination of the complainant as PW1, the Additional Public Prosecutor moved an application under Section 319 of ‘the Code’ of Criminal Procedure (hereinafter referred to as “the Code”) for summoning Ajit Singh as an additional accused on the basis of some incriminating evidence came against him. The Principal Magistrate, Juvenile Justice Board dismissed the said application on the ground that Juvenile Justice Board is to try the cases only against the juveniles. Since Ajit Singh was not a juvenile, therefore, the application filed by the Prosecution under Section 319 of ‘the Code’ for summoning him as additional accused is not maintainable. 6. The Principal Magistrate, Juvenile Justice Board dismissed the said application on the ground that Juvenile Justice Board is to try the cases only against the juveniles. Since Ajit Singh was not a juvenile, therefore, the application filed by the Prosecution under Section 319 of ‘the Code’ for summoning him as additional accused is not maintainable. 6. Against the said order, the complainant filed the petition (Crl.Misc.No.M-21707 of 2009) under Section 482 of ‘the Code’ for quashing the same. In the said Criminal Misc. petition, the learned Single Judge of this Court has referred the aforesaid question for consideration to the larger Bench. 7. We have heard Shri D.S. Pheruman, learned counsel for the petitioner, Mrs. Manjari Nehru Kaul, learned Additional Advocate General, Punjab as well as Shri S.S. Randhawa, Additional Advocate General, Haryana, who had been asked to assist the Court on this issue. 8. Learned counsel for the petitioner argued that when a trial is going on before the Juvenile Justice Board pertaining to the juvenile in conflict with law and during the trial some incriminating evidence came against a person not being an accused, the Juvenile Justice Board is not debarred under the provisions of the Juvenile Justice Act to entertain an application under Section 319 of ‘the Code’ for summoning the said person as an additional accused merely because the said person is not a juvenile. According to him, under Section 18(1) of the Juvenile Justice Act ‘no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile.’ This mandatory requirement is notwithstanding anything contained in Section 223 of ‘the Code’ or in any other law for the time being in force. Learned counsel further argued that sub-section (2) of Section 18 provides that if a juvenile is accused of an offence for which under Section 223 of ‘the Code’ or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person. Learned counsel argued that what is prohibited under Section 18 of the Juvenile Justice Act is that no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. Only the Juvenile Justice Board has the exclusive jurisdiction to charge and try a juvenile in conflict with law. But that provision does not debar the Juvenile Justice Board to summon the additional accused, whose trial later on can be separated and refer to the regular Court for his trial. According to the learned counsel, if the juvenile has committed the offence in the course of same transaction along with another accused, who is not a juvenile, they have to be charged with and tried together in view of the provisions contained in Section 223 of ‘the Code’. But, if two or more juveniles, who are to be charged or tried together, have been sent to the Juvenile Justice Board and later on the Juvenile Justice Board came to the conclusion that one of the accused is not a juvenile, then the Juvenile Justice Board can separate the trial of the juvenile and the other person, and send the other person for trial before the regular Court. Thus, according to the learned counsel, if on the basis of the incriminating evidence came against a person during the trial of a juvenile, the Juvenile Justice Board is not prohibited from entertaining an application filed by the prosecution for summoning the additional accused. The Juvenile Justice Board after summoning the other accused can separate the trial of the juvenile and the other person, and forward the case of other person, who is not a juvenile, to regular Court for his trial. Therefore, it cannot be said that the Juvenile Justice Board has no jurisdiction to entertain the application filed under Section 319 of ‘the Code’ for summoning the additional accused merely on the ground that the said accused is not a juvenile. 9. Learned counsel for the respondent-State did not raise any contrary arguments. 10. In light of the arguments raised by the learned counsel for the petitioner, we have examined the aforesaid question. Section 4 of ‘the Code’ provides that all the offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained in ‘the Code’. 10. In light of the arguments raised by the learned counsel for the petitioner, we have examined the aforesaid question. Section 4 of ‘the Code’ provides that all the offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained in ‘the Code’. Sub-section(2) of Section 4 further provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. According to the Scheme of ‘the Code’, after registration of a case against the accused, the police is required to investigate the matter. After the investigation, the police is further required to submit the report/challan under Section 173 of ‘the Code’, which is the outcome of an investigation. The result of investigation under Chapter XII of ‘the Code’ is a conclusion that an Investigating Officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent Court to take cognizance thereupon under Section 190(1)(b) of ‘the Code’ and to proceed with the case for trial, where the materials collected during investigation are to be translated into legal evidence. The trial Court is then required to base its conclusion solely on the evidence adduced in the trial. Further, according to the Scheme of ‘the Code’, two or more persons is to be charged and tried together if they have committed the same offence in the course of the same transaction. This is so provided under Clause (a) of Section 223 of ‘the Code’. Further, during the trial, if some incriminating evidence comes against a person, who has not been shown to be an accused, the trial Court has been empowered under Section 319 of ‘the Code’ to summon the said person as an additional accused. Section 319 Cr.P.C. is reproduced below for ready reference:- “319. Further, during the trial, if some incriminating evidence comes against a person, who has not been shown to be an accused, the trial Court has been empowered under Section 319 of ‘the Code’ to summon the said person as an additional accused. Section 319 Cr.P.C. is reproduced below for ready reference:- “319. Power to proceed against other persons appearing to be guilty of offence.-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under subsection (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 11. The aforesaid provisions of ‘the Code’ empower a Court to proceed against any person not shown as an accused if it appears from the evidence that such person has also committed an offence for which he can be tried together with the accused. Sometimes the Court, while hearing a case against one or more accused, finds from the evidence that some person other than the accused before him is also involved in that very offence, in that situation, as per the Scheme of ‘the Code’, it is proper for that Court to summon such person as an accused for joining and trying him in the said case. The primary object underlying Section 319 is that the whole case against the accused is brought with not only expeditiously but also simultaneously. The primary object underlying Section 319 is that the whole case against the accused is brought with not only expeditiously but also simultaneously. Therefore, both justice and convenience require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. This is also the purpose of Section 223 of ‘the Code’. The power under Section 319 of ‘the Code’ can be exercised either on an application made to the Court or by the Court suo motu. It is in the discretion of the Court to take an action under the said Section and the Court is expected to exercise the discretion expeditiously having regard to the facts and circumstances of each case. 12. Under the provisions of the Juvenile Justice Act, only Juvenile Justice Board has been empowered to deal exclusively with all proceedings under the Act relating to the juvenile, in conflict with law. Under Section 14 of the Juvenile Justice Act, where a juvenile has been charged with the offence and is produced before a Board, the Board shall hold the inquiry in accordance with the provisions of the Act and make such order in relation to the juvenile as it deems fit. Section 18 of the Juvenile Justice Act further provides that there will be no joint proceeding of the juvenile and a person, who is not a juvenile. This Section reads as under:- “No joint proceeding of juvenile and person not a juvenile.-(1) Notwithstanding anything contained in section 223 of `the Code’ of Criminal Procedure, 1973 or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. (2) If a juvenile is accused of an offence for which under section 223 of ‘the Code’ of Criminal Procedure, 1973 or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person.” 13. There are other two provisions of the Juvenile Justice Act which deal with the situations when the Magistrate/Court was not empowered to deal with the juveniles. There are other two provisions of the Juvenile Justice Act which deal with the situations when the Magistrate/Court was not empowered to deal with the juveniles. These provisions are Section 7 and Section 7A of the Juvenile Justice Act, which are reproduced as under:- “7. Procedure to be followed by a Magistrate not empowered under the Act.- (1) When any Magistrate not empowered to exercise the powers of a Board under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence), is a juvenile or the child, he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding. (2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it. 7A. Procedure to be followed when claim of juvenility is raised before any court.-(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.” 14. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.” 14. The aforesaid Sections provide that in case the Magistrate is not empowered to exercise the power of a Board under the Juvenile Justice Act and in his opinion the person brought before him is a juvenile or a child, he shall without any delay after recording his opinion, forward the juvenile or the child to the competent Court having jurisdiction for proceeding against such juvenile in accordance with the provisions of the Juvenile Justice Act. Even if in a pending case before any Court the claim of a juvenility is raised by an accused and on inquiry the Court finds that on the date of commission of the offence the accused was juvenile, then the Court is bound to forward the juvenile in conflict with law to the Juvenile Justice Board for passing appropriate orders and the sentence in accordance with the provisions of the Juvenile Justice Act. Therefore, from the aforesaid provisions, it is clear that all the juveniles, in conflict with law, are to be tried and proceeded with by the Juvenile Justice Board in accordance with the provisions of the Juvenile Justice Act and the other accused, who are not juveniles, are to be tried by the regular court. Even if, a juvenile and an accused, who is not a juvenile, is required to be charged and tried together, their case is also to be separated and the other person, who is not a juvenile, is required to be referred by the Juvenile Justice Board to the regular Court having jurisdiction for his trial. In a case where the accused is a juvenile and the proceeding with regard to the said offence is going on before the Juvenile Justice Board, while proceeding against the said accused, the Juvenile Justice Board finds from the evidence, which has come on record during the proceedings before it, that some person other than the juvenile in conflict with law before him is also involved in that very offence, in our opinion, the Juvenile Justice Board will not be a silent spectator or without power to summon the said accused. In that situation, in our opinion, even Juvenile Justice Board can exercise the power conferred under Section 319 of ‘the Code’ for summoning the additional accused either suo motu or on the application filed by the prosecution. The summoning of the additional accused is like taking cognizance of the offence against an accused and then to summon him to be charged with and tried along with other accused. In case it is revealed that additional accused, who has been summoned on the basis of the incriminating evidence coming against him, is not a juvenile, then in view of Section 18 of the Juvenile Justice Act, he cannot be charged and tried with by the Juvenile Justice Board and his trial is to be separated as required under sub-section (2) of Section 18 of the Juvenile Justice Act. Therefore, what has been prohibited under sub-section (2) of Section 18 is to charge and try a juvenile for an offence together with a person, who is not a juvenile and not the summoning of a person who is not a juvenile as an additional accused. After summoning of such person, his trial can be separated under sub-section (2) of Section 18 of the Juvenile Justice Act. Further, Rule 5(2) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 provides that the Juvenile Justice Board shall have the powers conferred by ‘the Code’. Therefore, in our opinion, the power under Section 319 of ‘the Code’ can also be exercised by the Juvenile Justice Board and if the summoned accused is found to be not a juvenile, his trial can be separated and such person can be sent for trial to the regular Court of competent jurisdiction. Suppose, in a case, more than one accused are sent for trial before the Juvenile Justice Board by the police by taking that they were juveniles. But during the course of inquiry, if the Juvenile Justice Board finds that one of the accused is not a juvenile, in that situation, the Juvenile Justice Board is bound to separate his trial in view of Section 18(2) of the Juvenile Justice Act and send the said person for trial to the court of competent jurisdiction because under the Juvenile Justice Act, the Juvenile Justice Board is prohibited to charge and try a person who is not a juvenile. 15. 15. There are two judgments of this Court which dealt with the situations which were vice-versa to the present case. In Raju and others Versus State of Haryana and another, 2004(4) RCR (Crl.) 242, the accused, who was found innocent by the investigating agency, but was summoned on an application under Section 319 of ‘the Code’ as an additional accused during the trial of co-accused, challenged the order of his summoning on the ground that he was a juvenile on the day of commission of the offence, therefore, he could not be summoned by the Magistrate for joint trial with other co-accused on account of prohibition envisaged under Section 18 of the Juvenile Justice Act. This Court, while dismissing his petition, observed as under:- “6. A plain reading of the Section 319 Cr.P.C. makes it clear that when it appears to the Court from the evidence that any person not being an accused has committed an offence, the Court may proceed against such person. The legislative intent is very clear and it does not call for exhaustive consideration. At the time of summoning, the trial Court is not to see as to whether the person who is to be proceeded against is a juvenile or not. That stage will come only when the accused appears before it and claims to be a juvenile. In case, he can prima facie show to the court on the basis of any documentary evidence that he was a juvenile at the time of alleged occurrence, his case can be segregated from others for the purpose of trial or he can be sent to Juvenile Board as well with regard to determination of his age. If later any accused turns out to be a juvenile, the forum and the manner of trial would automatically change. Summoning and trial are evidently mutually exclusive; Section 18 sub-section (2) of the Act deals with similar type of situation. If the accused who is not a juvenile, has been charged and tried together with the juvenile, the Board taking cognizance of offence can direct separate trial of the juvenile and other person on account of prohibition contained in Section 18 of sub-section (1) of the Act. If the accused who is not a juvenile, has been charged and tried together with the juvenile, the Board taking cognizance of offence can direct separate trial of the juvenile and other person on account of prohibition contained in Section 18 of sub-section (1) of the Act. On the same analogy, if trial Court after summoning the accused U/s 319 Cr.P.C. comes to the conclusion that the person against whom proceedings have been initiated is, in fact, a juvenile, his trial can be held under the Act. In other words it can be said that the trial is prohibited and not the summoning. In case, arguments advanced by learned counsel for the petitioners are accepted, it would be giving handle to the Investigating Agency not to challan the accused, who simply claims to be a juvenile, and, therefore, the trial Court would also be precluded from summoning the said accused under Section 319 Cr.P.C. In other words it amounts to overreaching the law. 16. Similar view was taken in Netarpal Singh Versus State of Haryana and others, 2007(1) RCR (Crl.) 745, where the application filed by the prosecution under Section 319 of ‘the Code’ for summoning the unmarried sister-in-law, who was a juvenile at the time of commission of the offence, in a pending trial pertaining to dowry death, was dismissed. On a revision petition filed against the said order, this Court, while relying upon the aforesaid decision, allowed the said revision and held that the application filed by the prosecution under Section 319 of ‘the Code’ for summoning the juvenile was maintainable. These two decisions of this Court also support the view taken by us in this case. 17. In view of the aforesaid discussion, in our opinion, the Juvenile Justice Board has power and jurisdiction to entertain an application filed under Section 319 of ‘the Code’ for summoning the additional accused, like the other Magistrate, and issue summon to him, even if that person is not a juvenile. This power of the Juvenile Justice Board is incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice. The only prohibition for a Juvenile Justice Board is that it cannot charge and try a juvenile for an offence together with a person who is not a juvenile. This power of the Juvenile Justice Board is incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice. The only prohibition for a Juvenile Justice Board is that it cannot charge and try a juvenile for an offence together with a person who is not a juvenile. In our opinion, such prohibition does not debar Juvenile Justice Board from taking cognizance and summoning a person against whom some incriminating evidence comes during the trial. In that situation, he has been empowered under Section 18(2) of the Juvenile Justice Act to separate their trial and send the other person, who is not a juvenile, to the Court of competent jurisdiction for trial. 18. Thus, we answer the reference in affirmative and hold that the Juvenile Justice Board has the jurisdiction to entertain an application under Section 319 of ‘the Code’ for summoning a person, who is not a juvenile, but after summoning, the said person cannot be charged with or tried by the Juvenile Justice Board along with the juvenile, and after separating his case, he shall be forwarded for trial to the Court of competent jurisdiction. 19. Registry is directed to list the matter before the appropriate Bench as per roster. ---------0.J.S.K.0-----------