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2012 DIGILAW 702 (RAJ)

Vipul Joshi v. State of Rajasthan

2012-03-21

SANDEEP MEHTA

body2012
JUDGMENT 1. - The present miscellaneous petition has been filed by the petitioners seeking quashing of the proceedings of the charge-sheet No. 162A/2003 arising out of the F.I.R. No. 161/2003 of the Police Station, Mahamandir, Jodhpur for the offences under Sections 147, 451, and 323 Indian Penal Code pending in the Court of the Principal Magistrate, Juvenile Justice Board, Jodhpur whereby cognizance was taken against the petitioners for the aforesaid offences and accusation of the offences has been read over to them in this matter. 2. Succinctly stated, the facts of the Kaise are that an F.I.R. was registered at the Police Station, Mahamandir, Jodhpur for the offences under Sections 451, 147 and 323 Indian Penal Code by one Bhagirath Bishnoi on 24.4.2003 against Rajendra Dave, Vishal Dave and five other unknown persons with the allegation that the accused persons started pelting stones towards his house and thereafter all of them trespassed into his house and started assaulting the brothers of the first informant, namely Devendra, Prem Chand and Shrawan by Lathis, fists and kicks. It was alleged that Vishal Dave caused an injury on the head of Devendra by a Lathi, due to which he became unconscious and thereafter the neighbourers intervened and saved them and then the accused fled away. On the basis of the F.I.R. the investigation ensued and on the' conclusion of the investigation, a charge-sheet was filed against the accused Rajendra Dave, Vishal Dave, Vikas Dave and Dhanraj in the Court of the learned Additional Chief Judicial Magistrate No. 2, Jodhpur on 12.9.2003. The investigation was kept open as regards the remaining accused, i.e. the petitioners. It appears that thereafter the Investigating Agency lost track of the file and no further action was taken in the matter, on which Vipul Joshi approached this Court by way of S.B. Criminal Miscellaneous Petition No. 661/2011 with the prayer that the investigation was being kept pending against three accused for no justification whatsoever and thus the same should be quashed.' The Investigating Officer K.S. Bhati appeared before this Court on 23.1.2012 and submitted a report that the charge-sheet could not be filed in the matter because of the negligence of a Police Constable and assured the Court that the result of the investigation would be filed forthwith. Accordingly, the result of the investigation has, now, been filed in the Juvenile Justice Board, Jodhpur because admittedly all the three remaining accused persons (i.e. the petitioners herein) were juveniles on the date of commission of the offence, being under the age of 18 years. The Principal Magistrate, Juvenile Justice Board, Jodhpur, has thereupon registered the case and taken cognizance and also read over accusation of the offences to the petitioners by the impugned order dated 13.2.2012, hence the instant miscellaneous petition seeking quashing of the proceedings going on against the petitioners. 3. Learned counsel for the petitioners submits that the charge-sheet has been filed against the petitioners after a great delay of nearly eight years of commission of the offences. He submits that the petitioners are not responsible for the delay occasioned in filing of the charge-sheet and, thus, the charge-sheet filed against the petitioners and the impugned order taking cognizance deserve to be quashed on the ground of delay, which has been occasioned in this case. 4. Learned Public Prosecutor has, however, opposed the miscellaneous petition and submitted that the petitioners should, not be given the benefit of delay in this case because the delay was occasioned because of negligence of a Police Constable and the petitioners do not deserve to be given any advantage because of the said conduct of the Police Constable. 5. Having considered the arguments advanced at the bar and after going through the material available on record, it becomes apparent that the petitioners were juveniles when the incident took place. Repeatedly attempts were made by the petitioners for seeking the information from the Police Department as to why the proceedings were being kept pending against them. Ultimately, in pursuance to the miscellaneous petition, referred above, filed by the petitioner Vipul Joshi, the police has, now, filed a charge-sheet against the petitioners in the Court of the learned Principal Magistrate, Juvenile Justice Board. 6. The case against the previously charge-sheeted accused persons came to be decided by the learned Additional Chief Judicial Magistrate on 15.3.2006 and the learned Principle Magistrate acquitted the accused of the offences under Sections 451 and 323 Indian Penal Code but has convicted them for the offence under Section 147 Indian Penal Code and released them after admonition. A perusal of the judgment dated 15.3.2006 reveals that the parties had arrived at a compromise among themselves. 7. A perusal of the judgment dated 15.3.2006 reveals that the parties had arrived at a compromise among themselves. 7. Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 prescribes the orders which can be passed by a Court as regards a juvenile and reads as under : "15. Order that may be passed regarding juvenile.-(1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it thinks so fit, (a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile; (b) direct the juvenile to participate in group counselling and similar activities; (c) order the juvenile to perform community service; (d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money; (e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well- being of the juvenile for any period not exceeding three years; (f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well- being of the juvenile for any period not exceeding three years; (g) make an order directing the juvenile to be sent to a special home for a period of three years: Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit. (2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order. (2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order. (3) Where an order under clause (d), clause (e) or clause (f) of sub- section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile is conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for he due supervision of the juvenile in conflict with law: Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institute on under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home. (4) The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the Probation Officer." A bare reading of the aforesaid provisions shows that the juvenile Board is not empowered to pass any order of detaining a person who is not a juvenile. Admittedly, when the belated charge-sheet was filed in this case, the petitioners ceased to be juveniles. Thus, the Board cannot pass any order against the petitioners under Section 15 of the juvenile justice Act. 8. Admittedly, when the belated charge-sheet was filed in this case, the petitioners ceased to be juveniles. Thus, the Board cannot pass any order against the petitioners under Section 15 of the juvenile justice Act. 8. That apart, the delay of nearly eight years, which has been occasioned in filing the result of the investigation in this case, cannot be attributed to the petitioners by any stretch of imagination. The Hon'ble Apex Court, in the cases of Pankaj Kumar v. State of Maharashtra & Ors., AIR 2008 SC 3077 and Vakil Prasad Singh v. State, AIR 2009 SC 1822 , has held that the right to speedy investigation and trial is the fundamental right guaranteed to any person accused of an offence. The Hon'ble Apex Court observed as under : "Tested on the touchstone of the broad principles enumerated above, we are convinced that in the present case appellant's constitutional right recognised under Article 21 of the Constitution stands violated. It is manifest from the facts narrated above that in the first instance investigations were conducted by an officer, who had no jurisdiction to do so and the appellant cannot be accused of delaying the trial merely because he successfully exercised his right to challenge an illegal investigation. Be that as it may, admittedly the High Court vide its order dated 7.9.1990 had directed the prosecution to complete the investigation within a period of three months from the date of the said order but nothing happened till 27.2.2007 when, after receipt of notice in the second petition preferred by the appellant complaining about delay in investigation, the Superintendent of Police, Muzaffarpur directed the Deputy Superintendent of Police to complete the investigation. It was only thereafter that a fresh charge-sheet is stated to have been filed on 1.5.2007. It is also pertinent to note that even till date, learned counsel for the State is not sure whether a sanction for prosecuting the appellant is required and if so, whether it has been granted or not. We have no hesitation in holding that at least for the period from 7.12.1990 till 28.2.2007 there is no explanation whatsoever for the delay in investigation. Even the direction issued by the High Court seems to have had no effect on the prosecution and they slept over the matter for almost seventeen years. We have no hesitation in holding that at least for the period from 7.12.1990 till 28.2.2007 there is no explanation whatsoever for the delay in investigation. Even the direction issued by the High Court seems to have had no effect on the prosecution and they slept over the matter for almost seventeen years. Nothing could be pointed out by the State, far from being established to show that the delay in investigation or trial was in any way attributable to the appellant. The prosecution has failed to show any exceptional circumstance which could possibly be taken into consideration for condoning a callous and inordinate delay of more than two decades in investigations and the trial. The said delay cannot, in any way, be said to be arising from any default on the part of the appellant. Thus, on facts in hand, in our opinion, the stated delay clearly violates the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution." 9. As has been observed above, in this case, the sword of investigation was kept hanging on the head of the accused persons for a period of nearly eight years for no justification whatsoever. In the intervening period, the trial of the charge-sheeted accused has already been concluded and they have been acquitted of the principal offences, i.e. the offences under Sections 451 and 323 Indian Penal Code by virtue of a compromise. Thus, this Court feels that now the possibility of the petitioners being convicted in this case is absolutely remote. 10. That apart, even if the petitioners are convicted then too the Juvenile Board has, now, ceased to have any jurisdiction to pass any order against the petitioners. Section 14 of the Juvenile Justice Act prescribes that whenever a juvenile charged with the offence is produced before the Board, the Board shall hold an inquiry in accordance with the provisions of the Juvenile Justice Act and an inquiry has to be completed within a period of four months from the date of its commencement. In the instant case, the petitioners ought to have been produced before the Juvenile Justice Board way back in the year 2002 if at all the prosecution was seriously desirous of prosecuting them. In the instant case, the petitioners ought to have been produced before the Juvenile Justice Board way back in the year 2002 if at all the prosecution was seriously desirous of prosecuting them. As has been observed above, the prosecution did not care to file the result of the investigation in relation to the petitioners for the period of nearly eight years.Resultantly, this Court is of the opinion that allowing any further prosecution of the petitioners in this case would be violative of fundamental right of the petitioners to a speedy trial, as guaranteed under Article 21 of the Constitution of India.Resultantly, the miscellaneous petition succeeds. The charge-sheet No. 162-A/2003 filed against the petitioners as well as the impugned order dated 13.2.2012 passed by the Principal Magistrate, Juvenile Justice Board, Jodhpur in F.I.R. No. 161/2003 of Police Station, Mahamandir, Jodhpur, taking cognizance and reading over the accusation of the offences to the petitioners are hereby quashed. The stay petition stands disposed of.Petition allowed. *******