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2018 DIGILAW 527 (JK)

Station House Officer v. Eycon Parvaiz Mir

2018-07-17

ALI MOHD.MAGREY

body2018
JUDGMENT : ALI MOHD. MAGREY, J. 1. In the instant petition, the petitioner has invoked the jurisdiction of this court under section 104 of the Constitution of State of J&K and questioned the order dated 21st June, 2017 passed by the Court of 1st Additional Sessions Judge, Srinagar, in an application filed during the pendency of the trial in case FIR No. 149/2015 under section 392/302/34/201 RPC registered at Police Station Sadder in case titled State v. Mohammad Khalil Najar and ors; and the judgment dated 30th November, 2017, passed by the Court of 2nd Additional Sessions Judge Srinagar in an appeal filed by respondent against the order dated 13.11.2017 passed by the learned Chief Judicial Magistrate, Srinagar. 2. The brief factual matrix of the case giving rise to the filing of instant petition are summarized as under: (i) That a case FIR No. 149/2015 u/s. 392, 302, 34, 201 RPC came to be registered against accused Eycon Parvaiz alias Javeed in police station Sadder, Srinagar. (ii) It is submitted that an application came to be filed seeking bail in favour of accused No. 2 (Eycon Parvaiz) stated to be a juvenile aged about 15 years. It is submitted that while considering the plea the Court of 1st Additional Sessions Judge, Srinagar decided that the accused No. 2 (Eycon Parvaiz) be tried separately by the Juvenile Court and ordered splitting of the challan. (iii) It is submitted that after splitting the challan, supplementary challan was filed before the Court of CJM, Srinagar with a view to verify the age of the accused (respondent herein). (iii) It is submitted that after splitting the challan, supplementary challan was filed before the Court of CJM, Srinagar with a view to verify the age of the accused (respondent herein). It is submitted that the accused was referred to the Medical Board (SMHS Hospital, Srinagar) for examining his age, where it was decided to undergo OPG for more clearance, which facility was not being available at Government Dental College/JVC Medical College, Srinagar, therefore, the accused was referred to the Police Hospital, Srinagar, and it is submitted that the said facility was also not available there, (iv) It is submitted that ultimately, it was reported that the said OPG facility is available at SMGS Hospital, Jammu, therefore, vide order dated 13.11.2017, SSP Srinagar was asked to communicate the Medical Superintendent, SMGS Jammu to constitute a team for the above mentioned purpose so that the accused was transported to Jammu under proper escort on the date to be fixed for examination with directions to the Medical Superintendent to submit the report by or before the next date fixed on 28.11.2017. (v) It is submitted that the accused (respondent herein) was aggrieved of the said order dated 13.11.2017 appealed the same before the appellate court of learned 2nd Additional Sessions Judge, Srinagar. The learned 2nd Additional Sessions Judge Srinagar was pleased to dispose of the appeal with the following direction: "Now when the required procedure got adopted by the higher forum with regard to determination of juvenility of the appellant, how come CJM Court (Board) muster power to sit into appeal over the order of the 1st Additional Sessions Judge, Srinagar and initiated fresh inquiry with regard to the age determination test of the juvenile. While holding that the CJM could not have initiated fresh enquiry, the Court has ruled as under: Even for the sake of argument, if the 1st Additional Sessions Judge would have gone wrong in determining the age of the accused as juvenile, the only course left for the prosecution or for the complainant of the case was to approach the Hon'ble High Court for setting aside the same. Once that has not been done, the Board is legally enjoined to go by the order of the superior court with regard to age of the accused who has been declared juvenile and not to revisit the same and open the issue of juvenility afresh that too on this untenable and sham ground that D.O.B certificate is issued by Municipality after the occurrence. It is absolutely unsustainable and legally inappropriate in the eyes of law, proprietary and judicial discipline." 3. The petitioner is therefore, aggrieved of order dated 21st June, 2017 passed by the Court of 1st Additional Sessions Judge, Srinagar and the judgment dated 30th November, 2017, passed by the Court of 2nd Additional Sessions Judge Srinagar, whereby the court directed the concerned police station to file supplementary challan against accused No. 2 being juvenile and 2nd Additional Sessions Judge allowed the appeal set aside the impugned order of CJM Srinagar dated 13.11.2017 whereby the CJM has directed to send the accused No. 2 to Medical Superintendent Jammu for tracing the age. 4. On notice respondent has filed reply through counsel wherein the learned counsel has resisted the petition and defended the impugned orders challenged in the instant petition, therefore, seeks dismissal of the petition on the ground that petition under section 104 of the Constitution of State of J&K is not maintainable as the right of revision is a statutory right and where the law provides remedy by filing a revision before the High Court, the grounds of challenge cannot be enlarged by filing a petition under section 104 of the Constitution. 5. Mr. B.A. Dar, learned Sr. AAG, appearing for the petitioner State submits that the claim of the accused namely Eycon Parvaiz with reference to the juvenility was settled by the Appellate Court without adhering to the procedure as in vogue not only in terms of the Juvenile Justice (Care and Protection) Act, 2013, but also the rules and the judgments of this court and the supreme Court of India. He submits that under a mistaken belief with no supportive material and evidence/enquiry, the Appellate court has given the benefit of juvenility to the accused. 6. Mr. He submits that under a mistaken belief with no supportive material and evidence/enquiry, the Appellate court has given the benefit of juvenility to the accused. 6. Mr. Dar has further submitted that the issue with reference to the determination of age of the accused while supplementing the challan of the juvenile justice board (CJM) Srinagar, the said juvenile justice board had already initiated the process of enquiry to determine the age of the accused which order was questioned by the accused before the court of 2nd Additional Sessions Judge, Srinagar, who without proper application of mind and with wrong quotations of the provisions of law and the material on record has set aside the order of the CJM. 7. Leaned counsel for respondent further submits that the petitioner is relying on the provisions of J&K Juvenile Justice Rules, 2007 which are non-existent. It is submitted that the Juvenile Justice Act, 1997 has been repealed and replaced by J&K Juvenile Justice (Care and Protection of Children) Act 2013 and Rules framed under the Repealed Act, 2005 have also been repealed and replaced by J&K Juvenile Justice (Care and Protection of Children) Rules, 2014. On this count the petition also deserves to be dismissed. In support of his arguments learned counsel for respondent referred to and relied upon the case titled Parag Bhati (Juvenile) Through Legal Guardian-Mother-Rajni Bhati v. State of Uttar Pradesh and another reported in (2016) 12 Supreme Court Cases 744: case titled Shah Nawaz v. State of Uttar Pradesh and another, reported in (2012) 2 Supreme Court Cases (Cri) 864. 8. Heard learned counsel for the parties, perused the record as also the trial court record and considered the matter. 9. In terms of the aforesaid two provisions of the two Constitutions, namely, Section 104 of the Constitution of Jammu and Kashmir and Article 227 of the Constitution of India, this Court has the power of general superintendence to keep the subordinate courts within the bounds of their authority, to see that they do what their duty requires them to do and that they do it in a legal manner. This power does not involve the responsibility for correctness of their decisions either on fact or on law. This power does not involve the responsibility for correctness of their decisions either on fact or on law. It has been laid down by the Supreme Court that the power of superintendence is not to be exercised unless there has been an unwarranted assumption of jurisdiction, not vested in a court or tribunal; gross abuse of jurisdiction or an unjustifiable refusal to exercise jurisdiction vested in a court or tribunal. It has been clarified that if only there is a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice, power of superintendence can be exercised. This is a discretionary power to be exercised by the Court and cannot be claimed as a matter or right by a party. Reference in this connection may be made to the judgment of the Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 . Therein it was also laid down that unless there is any violation of some jurisdictional error, the petition under Article 227 is not maintainable. 10. This Court in this petition while exercising the competence power has found that order passed by First Additional Sessions Judge and 2nd Additional Sessions Judge, Srinagar are against the laws having no authority to declare the respondent as Juvenile, therefore, erred in law. 11. The claim of the respondent with reference to being juvenile can be settled by Juvenile Justice Board i.e. CJM, Srinagar who has rightly asked the police to have the accused examined by the Medical Board which order is consistent with law. 12. In the above background the writ petition is allowed and order dated 21st June, 2017 passed by the Court of 1st Additional Sessions Judge, Srinagar, in an application filed during the pendency of the trial in case FIR No. 149/2015 under section 392/302/34/201 RPC registered at Police Station Sadder in case titled State v. Mohammad Khalil Najar and ors; and the judgment dated 30th November, 2017, passed by the Court of 2nd Additional Sessions Judge Srinagar in an appeal filed by respondent against the order dated 13.11.2017 passed by the learned Chief Judicial Magistrate, Srinagar, are set aside. 13. 13. The learned Chief Judicial Magistrate, Srinagar shall proceed further in the matter and determine the age with reference to claim of the accused-Eycon Parvaiz Mir within a period of two months from the date copy of this order is received by him. 14. The accused shall remain in custody along with other co-accused and be tried by the trial court subject to decision of the Chief Judicial Magistrate, Srinagar with reference to claim of the accused-Eycon Parvaiz Mir. 15. Claim of accused for grant of bail in the event made shall be considered by the trial court notwithstanding the pendency of his case before Juvenile Justice Board (CJM) Srinagar. 16. Registry to send down the trial court record along with the copy of the order, copy whereof shall also be send to CJM Srinagar for compliance.