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2016 DIGILAW 20 (MEG)

Besilda Warjri v. State of Meghalaya

2016-09-01

S.R.SEN

body2016
JUDGMENT : S.R. Sen, J. Heard Mr. M.F. Qureshi, learned counsel for the petitioner as well as Mr. N.M. Mansuri, learned counsel for the respondents. 2. The petitioner's case in a nutshell is that: "The petitioner is the mother of the rape victim minor girl who filed an FIR with the police on 13/11/2013 against the Respondent No. 4 registered as Lumdiengjri P.S. Case No. 106 (11) of 2013 under section 3(a)/4 POCSO Act and the case was charge sheeted by the police and sent for trial before the Special Court (POCSO), Shillong wherein the case was renumbered as Special Case (POCSO) 17 of 2014. During the trial, the Respondent No. 4 by filing a petition claim that on the day of incident that took place on 12/11/2013 he was a minor, therefore claimed juvenility. The Special Judge (POCSO), Shillong without conducting the proper enquiry as envisaged under section 7A of the Juvenile Justice (Care and Protection of Children) Act 2000 came to conclusion that the Respondent was minor on the day of occurrence and passed an impugned order dated 24-09-2015, thereafter, transfer the case against the Respondent to the Juvenile Justice Board, Shillong. The Petitioner is aggrieved and dissatisfied with the casual approach of the learned Special Judge (POCSO), Shillong in passing the impugned Order dated 24-09-2015 without examining the authenticity of the documents produced by the Respondent No. 4 that too much after the incident which are on face of it are the fabricated and manufactured documents. Hence there is an improper exercise power on the part of the Learned Special Judge (POCSO), Shillong while passing the impugned order, therefore there has been serious miscarriage of justice. The Petitioner has no other option to invoke the inherent power of this Hon'ble Court under Section 482 Cr.P.C , 1973 to secure the ends of justice". 3. Hence there is an improper exercise power on the part of the Learned Special Judge (POCSO), Shillong while passing the impugned order, therefore there has been serious miscarriage of justice. The Petitioner has no other option to invoke the inherent power of this Hon'ble Court under Section 482 Cr.P.C , 1973 to secure the ends of justice". 3. The learned counsel for the petitioner submits that, while determining the age of the accused Shri Raymidi Kharsohnoh in connection with Lumdiengjri P.S. Case No. 106 (11) of 2013 under section 3(a)/4 of the POCSO Act, 2012 and registered as Special Case (POCSO) 17 of 2014, the Court has failed to appreciate the evidence in its full extent and came to the conclusion only on the basis of the ossification test and the School admission register produced from the second school called "Kyrdon Kynton Laimer School, 3rd Mile, Upper Shillong" where he studied only for three months, but has not examined the admission register from the first school called "San Shnong Secondary School" where he initially took admission. The Court also did not appreciate or consider the birth certificate issued by Ganesh Das Hospital, Shillong and simply declare the accused as Juvenile on the basis of the ossification test as well as the School admission certificate issued by the second school. 4. On the other hand, the learned counsel for the respondents submits that the Court has rightly pass the impugned order dated 24.09.2015 after examining and recording of the evidence and also submits that the birth certificate which was produced by the petitioner's counsel was not the birth certificate, but is an extract copy of the birth register. 5. After hearing the submissions advanced by the learned counsel for the parties and after perusal of the impugned order dated 24.09.2015 passed by the learned Special Judge under POCSO Act, I am of the view that the evidence cited above is not enough to declare the accused as Juvenile. Therefore, the Court is directed to examine the following records, to call the birth certificate along with the birth register and that to be clarified from the doctor or the person maintaining the record and also to call the School admission register where the accused initially admitted for his education and also taking into consideration the driving licence produced by the accused and other relevant documents and to come to a logical conclusion. Since I find that the impugned order dated 24.09.2015 is not dealt with the matter properly, the said impugned order is hereby set aside. 6. The Registry is directed to send a copy of this judgment and order along with the Lower Court case record immediately. 7. With these observations and directions the matter is allowed to that extent and stands disposed of.