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2016 DIGILAW 327 (RAJ)

Vinod v. State of Rajasthan

2016-02-26

SANEEP MEHTA

body2016
JUDGMENT : Hon'ble MEHTA, J.— The instant revision has been preferred by the petitioner Vinod being aggrieved of the judgment dated 1.10.2015 passed by the learned Sessions Judge, Hanumangarh in appeal whereby the appellate court, whilst partly accepting the appeal filed on behalf of the petitioner against the judgment dated 31.8.2015 passed by the Juvenile Justice Board, Hanumangarh, set aside the judgment, acquitted the petitioner and remanded the matter to the Board for fresh inquiry. 2. Facts in brief are that a charge-sheet was filed against the petitioner in the capacity of a delinquent juvenile before the learned Juvenile Justice Board, Hanumangarh for the offences under Sections 363, 342, 366A and 376 IPC. The Board after holding inquiry held the petitioner guilty of the above offences and directed that he be sent to the Special Home under Clause (6) of Section 15 of the Juvenile Justice Act for a period of three years. The petitioner filed an appeal against the said judgment. The appellate court, whilst considering the appeal found that the inquiry was conducted in an absolutely perfunctory fashion. As per Section 5(3) of the Rules, the presence of the Principal Magistrate and at least one Member is essential to constitute the quorum essential for recording evidence during the inquiry. However, the statements of the witnesses PW.1 Dr. Rajeev Munjal, PW.2 Parminder Singh and PW.3 Smt. Renu bore only the signatures of one Member of the Juvenile Justice Board. The statements of these witnesses were recorded in absence of the Principal Magistrate. The statements of witnesses PW.5 Kavita, PW.6 Bheem Sen, PW.7 Om prakash, PW.8 Krishna Lal, PW. 9 Sheopat Ram and PW.10 Dr. Manju Kamboj were recorded by the Principal Magistrate in absence of the members. The statements of PW.12 Krishna Lal bear no signatures of the recording officer at all. The statement of Ranveer Singh, the thirteenth witness of the prosecution was marked as PW.15. No signatures of either the Principal Magistrate or the Member of the Juvenile Justice Board were appended on the statement of this witness. The statement only bears the seal of the Member, Juvenile Justice Board. The statement of accused under Section 313 Cr.P.C. was recorded by a single member. The appellate court found that the procedure adopted by the Juvenile Justice Board was totally casual and dehors the provisions of the Act. This, the inquiry was held to be irretrievably vitiated. 3. The statement only bears the seal of the Member, Juvenile Justice Board. The statement of accused under Section 313 Cr.P.C. was recorded by a single member. The appellate court found that the procedure adopted by the Juvenile Justice Board was totally casual and dehors the provisions of the Act. This, the inquiry was held to be irretrievably vitiated. 3. A plea was raised on behalf of the petitioner before the appellate court that as he had crossed the age of 18 years, no order sending him either to the Special Home or the Fit Institution could be passed. It was contended that even if the proceedings were to be remanded then also, it would result into an inconsequential and futile exercise and therefore, the matter should not be sent back to the Board for a fresh inquiry. However, the learned appellate court, noticing fundamental defects in the proceedings of the Juvenile Justice Board, set aside the order dated 31.8.2015 and while acquitting the petitioner, remanded the case to the Juvenile Justice Board, Hanumangarh for holding fresh inquiry and hence, this appeal. 4. Shri J.S. Khichi, learned counsel for the petitioner relied on thee judgment rendered by this Court in the case of Rashid @ Rasshid @ Rashidiya vs. State of Rajasthan reported in 2012(4) Cr.L.R. (Raj.) 1786 and urged that since the petitioner had, by the date of disposal of the appeal, crossed the age of juvenility and is well above 18 years, no useful purpose will be served by having a denovo inquiry conducted. Even if the petitioner is again held guilty, the Juvenile Justice Board cannot pass any order under Sections 15 or 16 of the Act against the petitioner. The Board cannot direct him to be sent to the Special Home or the Fit Institution and thus, a fresh inquiry would be nothing but an exercise in futility. He urged that the victim has married and is settled in her life and if she is again summoned to give evidence in the denovo inquiry, her matrimonial life could be adversely affected. He thus prayed that the impugned judgment passed by the appellate court directing a fresh inquiry is totally unjustified and the same deserves to be set aside to that extent while upholding the acquittal of the petitioner. 5. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the petitioner. 6. He thus prayed that the impugned judgment passed by the appellate court directing a fresh inquiry is totally unjustified and the same deserves to be set aside to that extent while upholding the acquittal of the petitioner. 5. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the petitioner. 6. I have heard the arguments advanced by the learned counsel for the parties and have gone through the impugned judgment and the original record. 7. Apparently, the concerned Presiding Officers, who headed the Board on the relevant dates acted in an absolutely casual and perfunctory fashion while conducting the inquiry. It is rather a case of dereliction of duties by the Presiding Officers concerned. The statements of few of the witnesses were recorded by a single Member in absence of the Principal Magistrate. Presumably, the Presiding Officer might not have been available on these dates. However, immediately on noticing this error, action was required to be taken to rectify the proceedings. The statement of Krishna Lal PW.12 is signed by the Principal Magistrate on the first page but at the end of the statement, where the note "read over and admitted to be correct" is recorded, the Principal Magistrate did not care to put his signatures. The statement of Ranveer Singh was recorded in absence of the Principal Magistrate. As noted above, the statement is not even signed by the Member, who recorded the same. The statement of the accused under Section 313 Cr.P.C. was recorded by a single Member. Thus, the Chief Judicial Magistrates, who presided over the Board during this period, acted in total violation of the mandatory requirements of the Juvenile Justice Act and in total dereliction of the solemn duties assigned to them. Evidence could not have been recorded without the proper quorum. Thus, the learned appellate court was perfectly justified in reversing the judgment passed by the Juvenile Justice Board and in acquitting the petitioner from the charges as the inquiry was conducted in an absolutely perfunctory manner and was totally vitiated. 8. However, the fact remains that as per the case set up in the charge-sheet and as per available school record, the petitioner's date of birth is 2.8.1995. During course of inquiry, the petitioner set up a defence of consent with the victim. 8. However, the fact remains that as per the case set up in the charge-sheet and as per available school record, the petitioner's date of birth is 2.8.1995. During course of inquiry, the petitioner set up a defence of consent with the victim. Even while deciding the appeal, the learned appellate court noticed that the petitioner had crossed the age of juvenility and thus, could not be sent to the Special Home. 9. Learned counsel for the petitioner at the time of argument urged that the victim has married in the intervening period and therefore, if reinquiry is conducted, she will again have to be summoned for giving evidence before the Juvenile Justice Board and would be subjected to cross-examination and the action might jeopardize her matrimonial life. This Court in the case of Rashid (supra) has propounded that if a juvenile delinquent had, at the time of being held guilty for the offence by the Juvenile Justice Board, crossed the age of juvenility, then he cannot be sent to either the Special Home or the Fit Institution. On a bare perusal of Section 15 of the Act, this Court has no hesitation in holding that it is impermissible to send a major person to a Special Home or a Fit Institution. Sentence under Sections 15/16 of the Act can only be passed against a juvenile found guilty after inquiry under the Juvenile Justice Act and not against a person, who has become major. 10. In view of the above factual scenario, this Court is of the opinion that though the appellate court was perfectly justified in setting aside the judgment dated 31.8.2015 and acquitting the petitioner while holding that the proceedings conducted by the Juvenile Justice Board were illegal and vitiated but the direction to conduct a do-novo inquiry was not at all warranted in the peculiar facts of the case. 11. Thus, this Court is of the view that the acquittal of the petitioner as recorded by the appellate court whilst setting aside the judgment passed by the learned Juvenile Justice Board has to be sustained but the direction to remand the matter for holding a fresh inquiry has to be set aside. 11. Thus, this Court is of the view that the acquittal of the petitioner as recorded by the appellate court whilst setting aside the judgment passed by the learned Juvenile Justice Board has to be sustained but the direction to remand the matter for holding a fresh inquiry has to be set aside. For reaching to this conclusion, this Court is persuaded by the circumstances that a fresh inquiry even if conducted, would prove to be an exercise in futility as no order under Section 15 of the Act can now be passed against the petitioner, who has gained majority in the interregnum. If a denovo inquiry is held, the victim would have to be recalled for giving evidence and such an action could probably prejudicially affect and traumatize her afresh. 12. As a consequence of the above discussion, the revision deserves to be and is hereby allowed. The impugned judgment dated 1.10.2015 passed by the learned Sessions Judge, Hanumangarh is maintained to the extent, the learned appellate court set aside the judgment dated 31.8.2015 passed by the learned Juvenile Justice Board and acquitted the petitioner. However, the direction remanding the matter for holding a fresh inquiry is hereby quashed. 13. While parting, it is essential to note that the finding recorded by the learned appellate court in its judgment that the concerned Presiding Officers of the Juvenile Justice Board, Hanumangarh acted in a casual and negligent fashion and in dereliction of discharge of duties is fortified from the record. Thus, the matter is required to be brought to the notice of Hon'ble the Chief Justice for directing necessary action against the erring Judicial Officers, who presided over the Juvenile Justice Board, Hanumangarh during the relevant period. 14. Copy of this order be placed before Hon'ble the Chief Justice for information.