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Gujarat High Court · body

2022 DIGILAW 1465 (GUJ)

Kaushal Rakesh Patel v. State Of Gujarat

2022-10-19

SAMIR J.DAVE

body2022
JUDGMENT : 1. The order dated 21.09.2022 passed by this Court is recalled. 2. Rule. Learned APP waives service of notice of Rule for and on behalf of Respondent-State. 3. By way of preferring this Criminal Revision Application under Section 102 of Juvenile Justice Act, 2015, applicant-juvenile in conflict with law has prayed for quashing and setting aside judgment and order dated 20.12.2019 passed in Criminal Appeal No.125 of 2018 by the learned Additional Sessions Judge, Kheda at Nadiad as well as order dated 02.12.2018 passed by the learned Principal Magistrate, Juvenile Justice Board, Nadiad (hereinafter referred to as ‘the Board’) made in connection with FIR being C.R. No.I-35/2017 registered with Nadiad West Police Station, Kheda. 4. Heard learned advocate appearing for the applicant- juvenile in conflict with law and learned APP appearing for the respondent-State. 5. The brief facts of the case are that the original complainant name Kusumben had filed a missing complaint of her niece named Tanya, age 7 years on dated 19.09.2017 before the Nadiad West Police Station. In the course of investigation, it has been revealed that in fact the niece of the complainant name Tanya was kidnapped by one Meet Patel for ransom and the best reason known to him. It is alleged that he had killed the Tanya and hence, on 22.09.2017 the police had filed report for addition section 302, 364A, 201 and 120B of the IPC and also to add name of three accused persons i.e. Meet Patel, Kaushal Patel and Ajay Chunilal Bhuriya. After completion of investigation, the police had filed the chargesheet, wherein two accused were said to be minors. The police therefore filed charge-sheet of the two minors juvenile including the applicant herein before the Board. As the charge-sheet was filed before the Board, the original complainant- Kusumben had preferred an application under section 15 of the Act for conducting the trial of the applicant-juvenile as adult and the Board vide order dated 02.05.2018 had allowed the application filed by the complainant and transferred the case before the Sessions Court for conducting the trial of the applicant as adult. 6. The applicant- juvenile in conflict with law herein challenged the order passed by the Board before the Sessions Court, Kheda at Nadiad, which has been rejected by the learned Sessions Court vide order dated 20.12.2019 and confirmed the order passed by the Board. 6. The applicant- juvenile in conflict with law herein challenged the order passed by the Board before the Sessions Court, Kheda at Nadiad, which has been rejected by the learned Sessions Court vide order dated 20.12.2019 and confirmed the order passed by the Board. Hence, the applicant has challenged the impugned order before this Court by way of present application and prayed to quash and set aside both the orders passed by the Board as well as the learned Sessions Court, Kheda at Nadiad. 7. Heard learned advocates for the respective parties as well as learn juvenile in conflict with law ed APP for the respondent- State. 8. Learned Advocate Mr. Darshit Brahmbhatt for the applicant-juvenile in conflict with law submitted that there is clear violation of section 14(3) of the Juvenile Justice Act. He also submitted that the order passed by the Board as well as the Sessions Court are erroneous and without proper appreciating the evidence on record and also overlooked the provisions of law. It is also submitted that the Board as well as the Sessions Court had clearly overlooked the materials on record and Juvenile charge-sheet filed by the police and erred in granting the application filed by the original complainant. He also submitted that for conducting the trial as adult the specific role of the accused has to be seen not only just because he is the accused of heinous offence. The main contention of learned Advocate for the applicant-juvenile in conflict with law is that for conducting the trial as adult, the specific role of the accused has to be seen not only just because he is accused of the heinous offence. The crux of the contentions of the applicant-juvenile in conflict with law is that the original complainant does not have any locus standi to file an application for conducting the trial of the accused as an adult. In support of his submissions learned Advocate Mr.Brahmbhatt relied on the judgment of this Court in the case of B.M. Gupta Vs. Ashok Chandulal Bhatt reported in 2002 (4) GLR 3760 and submitted that the present case is squarely covered by this judgment and hence, present application may be allowed. 9. In support of his submissions learned Advocate Mr.Brahmbhatt relied on the judgment of this Court in the case of B.M. Gupta Vs. Ashok Chandulal Bhatt reported in 2002 (4) GLR 3760 and submitted that the present case is squarely covered by this judgment and hence, present application may be allowed. 9. Learned Advocate Ms.Kiran Pandey appearing for respondent no.2- original complainant submitted that the accused persons in collusion with each other have hatched conspiracy and kidnapped minor niece of the original complainant from her house during evening hours for ransom. She also submitted that in the present case, considering the seriousness of the offence committed by the accused persons, they have committed very heinous crime and can be considered as rarest of the rare case and also if the present accused persons will be tried as juvenile, there is all possibilities that in future they may commit such heinous offence again. She also submitted that considering the active role of the present applicant-juvenile in conflict with law, it appears that after kidnapping the victim, present applicant had called the parents of the victim and asked for the ransom in Hindi language and after death of the victim, present applicant- juvenile in conflict with law has returned to Nadiad after obtaining money from the coaccused with a view to avoid tracing of his location. She also submitted that thus considering the physiological report, it appears that the present applicant- juvenile in conflict with law is able to understand the seriousness of the offence committed by them and is also able to understand the result of commission of such offence. She submitted that there are concurrent findings by both the learned Courts and therefore, this Court may not interfere with the same and requested to dismiss the present application filed by the applicant-juvenile in conflict with law. In support of her submissions, learned Advocate Ms. Pandey emphasized on the judgment of Full Bench of the Jharkhand High Court passed in the case of Santu Mahto Vs. The State of Jharkhand in B.A. NO.2680 of 2014 to submit that the original complainant in fact has locus standi to give application for conducting trial of a juvenile accused as an adult accused looking to the heinousness of the crime. 10. Learned APP Mr. The State of Jharkhand in B.A. NO.2680 of 2014 to submit that the original complainant in fact has locus standi to give application for conducting trial of a juvenile accused as an adult accused looking to the heinousness of the crime. 10. Learned APP Mr. R. C. Kodekar, appearing for the respondent-State has strongly objected to the submissions made by learned advocate for the applicant and referred to provisions of sections 24 and 301 of the Code of Criminal Procedure, 1973. He also submitted that unlike section 302, section 301 of the Criminal Procedure Code is applicable to all courts of criminal jurisdiction. He therefore requested to dismiss the present application. 11. It is necessary to refer sections 301 and 302 of the Code of Criminal Procedure, 1973, which reads thus: “301: Appearance by Public Prosecutors. (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. (2) If in any such case, any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.” Section 302 of Code of Criminal Procedure, 1973 “302. Permission to conduct prosecution. (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader.” 12. It is required to be noted here the provision of section 15 of the Juvenile Justice Act, which reads as under: “15. (2) Any person conducting the prosecution may do so personally or by a pleader.” 12. It is required to be noted here the provision of section 15 of the Juvenile Justice Act, which reads as under: “15. (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18: Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psychosocial workers or other experts. Explanation.—For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. (2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974): Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101: Provided further that the assessment under this section shall be completed within the period specified in section 14.” 13. In view of the various pronouncements of the Apex Court, the law is very clear and settled by this Court in case of B. M. Gupta (Supra), this Court has observed thus:- “41. The learned APP has relied upon a decision of the Hon'ble Supreme Court in a case of SHIVKUMAR VS. HUKAMCHAND & ANRS. reported in (1999) 7 SCC 467 . It was a matter of bride burning and the brother of the deceased had engaged a private counsel to conduct the trial. The High Court had directed that the counsel appointed by the private to act under the direction from the Public prosecutor who shall conduct the case. The Supreme Court found that the High Court has right in approaching the issue as aforesaid and, therefore, no interference was called for. The High Court had directed that the counsel appointed by the private to act under the direction from the Public prosecutor who shall conduct the case. The Supreme Court found that the High Court has right in approaching the issue as aforesaid and, therefore, no interference was called for. It has also been observed that the prosecution in sessions case cannot be conducted by anyone other than the Public Prosecutor. That the roll of private counsel is limited to act under the direction of the Public Prosecutor. That he can submit written arguments after closure of the evidence with prior permission of the Court. The object of the provision was explained in details. It has also been observed that the duty of the Public Prosecutor is to act fairly and not merely to obtain conviction by any means fair or foul. Then it has further been observed that unlike Section 302, section 301 of the Criminal Procedure Code is applicable to all courts of criminal jurisdiction. This shows the power, right, function and duty of a private counsel appointed by a private party in a Sessions trial. When a private party can engage an Advocate, his right, powers and functions are limited. When a private complaint, legitimately interested in the proceeding of a Sessions trial and his advocate has only such a limited right, an individual - advocate or otherwise - can not claim any role to be played in a pending Sessions trial. Such a person cannot, as of right, claim to be a party to the pending Sessions trail. This decision, thus, clearly negative the contentions and the arguments of the petitioner herein. 46. On the aforesaid provisions an argument was advanced by the petitioner that the provisions are made for opening of the case before commitment of the case and not before the framing of charge. It is not possible to accept the above argument of the petitioner. When a prosecutor or APP in charge of the prosecution attends a particular sessions case, then even before the stage of framing of charge, he remains to be in charge of the prosecution. Therefore, even, if the charge is not framed. The PP or APP has to attend the Court to render assistance to the Court.” 14. When a prosecutor or APP in charge of the prosecution attends a particular sessions case, then even before the stage of framing of charge, he remains to be in charge of the prosecution. Therefore, even, if the charge is not framed. The PP or APP has to attend the Court to render assistance to the Court.” 14. It is required to be noted that the Full Bench of the Jharkhand High Court in the case of Santu Mahto (Supra) has held as under: “28. Upon survey of the law evolved through the pronouncements of the Hon'ble Supreme Court, the legislative Changes which has progressively occurred towards the recognition of the role and rights of the victim in a criminal trial, and the discussions made herein above, it can be said that the victim or a private person has the locus to appear in a proceeding initiated at the instance of the accused in any case before any Court where it is a affected party, however subject to the discretion conferred upon the Court, to be exercised in the manner and to the extent, as may be required in the facts and circumstances of a particular case. "Locus Standi" has been defined in the Blacks Law Dictionary as "the right to bring an action or to be heard in a given forum." As per the Law Lexicon by P Ramanatha Aiyar "Locus Standi" signifies a right of appearance in a Court of Justice or right to be heard or place of standing. Such a Locus Standi confers on a person only if he has a interest in the matter. The victim / private person in that sense does have a interest in the matter since it is the ultimate sufferer of such crime. However, u/s 301(2) of the code, the legislature has consciously regulated it in the manner that the Pleader so instructed by a private person, shall act in any such case under the directions of the Public Prosecutor only and not as an absolute legal right of independent appearance before the Court. The aforesaid provision is therefore in clear distinction from the specific provision u/s 372 proviso of the code conferring upon the victim a distinct legal right to prefer an appeal which was not earlier available to him under the unamended section 372. The aforesaid provision is therefore in clear distinction from the specific provision u/s 372 proviso of the code conferring upon the victim a distinct legal right to prefer an appeal which was not earlier available to him under the unamended section 372. The conscious distinction made by the legislature in the wording of the two provisions is apparent and with a definite legislative purpose and intent. If such a view is taken that the victim / private party or the informant has legal right to appear in a proceeding initiated at the instance of the accused under the provisions of Section 301(2) of the Cr.PC read with Section 24(8) proviso, it would mean that the victim / private party is a necessary party in every such proceeding and as a matter of right, is entitled to notice before the proceedings are heard and decided. Such a course of Interpretation would amount to creating a specific legal right which the legislature never intended to confer upon the victim / private person. Such interpretation is neither desirable nor appropriate for a Court of law while undertaking the task of interpreting the specific language used in the Statute keeping into mind the Statute as a whole and the aim and object which it seeks to achieve.” 15. From the record and submissions made by learned advocates appearing for both the parties and learned APP appearing for the respondent-State as well as considering the age of the present applicant-juvenile in conflict with law, it appears that the original complainant does not have any locus standi to prefer an application for conducting the trial of the juvenile applicant-juvenile in conflict with law as an adult. In the present case, undisputedly the application seeking trial of the applicant- juvenile in conflict with law under section 15 of the Act has been preferred by the original complainant and not by the public prosecutor concerned. It is settled position of law that the victim/ private party/ original complainant has a right to appear in the proceedings in the form of assisting the public prosecutor concerned in the case. If it is interpreted that original complainant or the victim as the case may be has given the right of itself in criminal case, than in all proceedings the victim or the complainant has to be issued notice during the trial, which has never intent of the legislature. If it is interpreted that original complainant or the victim as the case may be has given the right of itself in criminal case, than in all proceedings the victim or the complainant has to be issued notice during the trial, which has never intent of the legislature. In the present case, the Sessions Court has lost sight of the very vital aspect that the application in question had been filed by the original complainant / private party and not by the public prosecutor concerned, who has been assisting the case. Under the circumstances, the Sessions Court ought not have entertained the application and ought to have rejected the same outright on the ground that the complainant had no locus standi to file such application. Considering the facts and circumstances of the case and in view of the principle laid down by this Court in case of B. M. Gupta (Supra), in the opinion of this Court, the learned Trial Court has committed serious error in law in passing the impugned order and hence the same deserves to be quashed and set aside. 16. It is well settled law that if a private person engages an advocate then also, the said advocate has to act in a limited manner as per sub-section (2) of section 301 of the Code. Such an advocate cannot be engaged by a private complainant for by-passing the regular public prosecutor in charge of prosecution. Such an advocate cannot independently and individually take part in the proceedings before Sessions Court by-passing the regular appointed public prosecutor in the matter. At the same time, such an advocate can submit written arguments after the close of the case with the permission of the court. Therefore, even if the party interested in the matter, engage an advocate then that advocate has also a very limited function to be performed in the trial before the Sessions Court. 17. In that view of the above discussion, present application stands allowed. The impugned judgment and order dated 20.12.2019 passed in Criminal Appeal No.125 of 2018 by the learned Additional Sessions Judge, Kheda at Nadiad as well as order dated 02.12.2018 passed by the learned Principal Magistrate, Juvenile Justice Board, Nadiad made in connection with FIR being C.R. No.I-35/2017 registered with Nadiad West Police Station, Kheda, are quashed and set aside. 18. Rule is made absolute. Direct service is permitted.