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2022 DIGILAW 1697 (ALL)

Ahamad Ali v. State of U. P.

2022-10-20

SHREE PRAKASH SINGH

body2022
JUDGMENT : 1. Heard Sri Sunil Kumar, learned counsel for the revisionists, Sri Mithilesh Kumar, learned AGA for the State and perused the record. 2. Instant criminal revision has been preferred against the impugned order dated 26.05.2022 passed by the Juvenile Justice Board, Bulandshahar in Criminal Case No. 140 of 2015 (State vs. Saleem @ Julla) arising out of Case Crime No.819 of 2015, under Section 302, 506 IPC, Police Station-Khurza Nagar, District Bulandshahar, whereby the application preferred by the State under Section 319 Cr.P.C. dated 28.10.2021 was allowed by the Juvenile Justice Board, Bulandshahar and the revisionists were summoned to stand trial under Sections 302, 506 IPC. 3. Factual matrix of the case is that first information report was lodged on 13.08.2015 in Case Crime No. 819 of 2015, under Sections 302, 506 IPC, Police Station Khurza Nagar, District Bulandshahar against Saleem @ Julla, Mauseem and Ahmad Ali by the complainant Buniyad Khan. 4. Learned counsel for the revisionists submits that accused Saleem @ Julla son of Yaseen preferred an application before the Juvenile Justice Board, Bulandshahar for declaration as juvenile claiming himself of 16 years and 2 month on the date of incident. After holding the prescribed inquiry, the Juvenile Justice Board vide order dated 01.09.2016 declared Saleem @ Julla as juvenile conflict. 5. The opposite party no.2 challenged the order dated 01.09.2016 before the sessions judge vide Juvenile Appeal No. 111 of 2016 (Buniyad Khan vs. State of U.P. and after adjudicating the aforesaid appeal, the Sessions Judge, Bulandshahar vide order dated 28.11.2016 rejected the appeal. 6. Accused Saleem @ Julla was enlarged on bail by the Sessions Judge, Bulandshahar vide order dated 28.11.2016 passed in Criminal Appeal No.120 of 2016. 7. Investigation of the case was concluded and the charge sheet dated 30.08.2015 bearing charge sheet No.368 of 2015 was filed against Saleem @ Julla under Sections 302, 504 IPC. Further trial of the case No.140 of 2015 (State vs. Saleem @ Julla) commenced before the Juvenile Justice Board, Bulandshahar. During the course of trial, PW 1 Buniyad Khan, PW 2 Shakir Khan, PW 3 Harun were examined and their deposition were recorded before the trial court/Juvenile Justice Board, Bulandshahar. The aforesaid witnesses in their deposition stated the complicity of the revisionists in the commission of offence. 8. During the course of trial, PW 1 Buniyad Khan, PW 2 Shakir Khan, PW 3 Harun were examined and their deposition were recorded before the trial court/Juvenile Justice Board, Bulandshahar. The aforesaid witnesses in their deposition stated the complicity of the revisionists in the commission of offence. 8. He next submits that an application dated 28.10.2021 under Section 319 Cr.P.C. was filed before the trial court with a prayer to summon the revisionists to face the trial along with accused Saleem @ Julla. The Juvenile Justice Board, Bulandshahar vide impugned order dated 26.05.2022 allowed the application preferred under Section 319 Cr.P.C. and summoned the revisionists to face the trial under Sections 302, 506 IPC and directed to place the file of the revisionists before the competent court of jurisdiction and directed for appearance of the revisionists before the Chief Judicial Magistrate, Bulandshahar on 7.06.2022. 9. Learned counsel for the revisionists has vehemently challenged the impugned order on the ground that Juvenile Justice Board, Bulandshahar has not vested with any jurisdiction to exercise the power conferred under Section 319 Cr.P.C. and on this score, the order passed by the Juvenile Justice Board, Bulandshahar suffers from manifest illegality and is liable to be set aside. 10. He further submits that order passed by the Juvenile Justice Board is without jurisdiction and is also suffered from jurisdictional error. It has further been submitted that the Juvenile Justice Board does not have any power to summon any accused under the provision of Code of Criminal Procedure. Further in the investigation, no involvement of the revisionists were found by the investigating officer, in the alleged offence, therefore, the name of the revisionists were dropped from the charge sheet. 11. He next added that the impugned order passed by the Juvenile Justice Board is without jurisdiction and against settled proposition of law. He further submits that impugned order has been passed in mechanical manner and the Juvenile Justice Board failed to appreciate that no strong or credible evidence available against the revisionists to summon the revisionists to face trial. 12. He next added that the impugned order passed by the Juvenile Justice Board is without jurisdiction and against settled proposition of law. He further submits that impugned order has been passed in mechanical manner and the Juvenile Justice Board failed to appreciate that no strong or credible evidence available against the revisionists to summon the revisionists to face trial. 12. Per contra, learned AGA for the State opposed the contention aforesaid and submits that the impugned order passed by the Juvenile Justice Board, Bulandshahar is well within the jurisdiction and the Juvenile Justice Board is competent to exercise the power conferred under Section 319 Cr.P.C. and the impugned order does not suffer from any illegality or perversity and therefore, the present revision is liable to be dismissed. 13. Having heard learned counsel for the respective parties and perused the records. 14. The question, which has come for consideration and determination by this Court is, whether the Juvenile Justice Board can exercise powers conferred under Section 319 of Cr.P.C. and can summon the accused to face the trial. 15. Before discussing the issue as well as the submissions of the counsels, it is necessary to reproduce the Section 103 of the Juvenile Justice (Care and Protection) Act, 2015. The Section 103 is quoted hereinbelow; Section 103 : Procedure in inquiries, appeals and revision proceedings (1) Save as otherwise expressly provided by this Act, a Committee or a Board while holding any inquiry under any of the provisions of this Act, shall follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1973 (2 of 1974) for trial of summons cases. (2) Save as otherwise expressly provided by or under this Act, the procedure to be followed in hearing appeals or revision proceedings under this Act shall be, as far as practicable, in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). 16. In the present case, as discussed above, the revisionists were named in the FIR but after investigation their names have been dropped from the array of the accused and charge sheet was filed only against Saleem @ Julla. Thereafter, cognizance was taken by the Juvenile Justice Board and trial of the case was commenced. 16. In the present case, as discussed above, the revisionists were named in the FIR but after investigation their names have been dropped from the array of the accused and charge sheet was filed only against Saleem @ Julla. Thereafter, cognizance was taken by the Juvenile Justice Board and trial of the case was commenced. During the course of trial, the PW 1, PW 2 and PW 3 were examined and their testimony were recorded before the trial court. The witnesses named above in the respective testimony have deposed the complicity and involvement of the revisionists in commission of offence of murder. 17. After the deposition of PW 1, PW 2 and PW 3, an application dated 28.10.2021 under Section 319 Cr.P.C. was preferred by the opposite party no.2 before the Juvenile Justice Board and adjudicating upon the aforesaid application, the Juvenile Justice Board, Bulandshahar summoned the accused to face the trial under Section 302, 506 IPC and since revisionists were major hence their files were separated and was ordered to place before the court of competent jurisdiction and revisionists were directed to appear before the Chief Judicial Magistrate, Bulandshahar on 07.06.2022. 18. It is admitted fact of the case that the revisionists at the time of alleged incident were major. 19. Before adverting to the submissions of the counsels, it is necessary to examine Section 4 of the Code, which provides that all the offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the code. Sub-section (2) of Section 4 further provides that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force, regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. According to the provisions of the Code, after registration of a case against the accused, the police is required to investigate into the matter and submit the charge sheet under Section 173 Cr.P.C., thereafter the competent court took cognizance of the offence under Section 190(1)(b) of the Code and to proceed with the case for trial where the materials collected during investigation are to be translated into legal evidence. Further, according to the different provisions of the Code, two or more persons, if they have committed the same offence in the course of the same transaction, are to be charged and tried together. This is so provided under Clause (a) of Section 223 of the Code but during trial, if some incriminating evidence comes against a person, who has not been shown to be an accused in the charge sheet submitted under Section 173 Cr.P.C., the trial court has been empowered under Section 319 Cr.P.C. to summon the said person as an additional accused. For appreciation of the issue involved in this case, Section 319 Cr.P.C. is reproduced, herein, below:- "Section 319. Power to proceed against other persons appearing to be guilty of offence- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 20. From bare perusal of the aforesaid provision, it is clear that Section 319 Cr.P.C. empowers a Court to proceed against any person not shown as an accused if it appears from the evidence that such person has also committed an offence for which he can be tried together with the accused and in that very situation, in view of the above provision, it is the duty of the court to summon such person as an accused, to face trial with the accused already committed in that case. Therefore, both justice and convenience require that cognizance against the newly summoned accused should be taken in the same case and in the same manner as against the accused. 21. As stated abovesaid, is the situation, when a normal trial is conducted, in a court but under the provisions of Juvenile Justice (Care and Protection of Children) Act, only the juvenile Justice Board has been empowered to deal exclusively with all proceedings under the Act relating to the juvenile in conflict with law. The unamended Section 18 (new section 23) deals with a situation where a juvenile has been charged with the offence and is produced before a Board, the Board shall hold the inquiry in accordance with the provisions of the Act and make such order in relation to the juvenile as it deems fit. The relevant provision of the Act, Section 18 (new section 23), is reproduced hereinbelow for better appreciation of the issue : "Section 18.-No joint proceeding of juvenile and person not a juvenile- (1) Notwithstanding anything contained in Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. (2) If a juvenile is accused of an offence for which under Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person." Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is reproduced hereinunder; Section 23. No joint proceedings of child in conflict with law and person not a child.-: (1) Notwithstanding anything contained in section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, there shall be no joint proceedings of a child alleged to be in conflict with law, with a person who is not a child. (2) If during the inquiry by the Board or by the Children's Court, the person alleged to be in conflict with law is found that he is not a child, such person shall not be tried along with a child. 22. From the plain reading of sub-section(1) of Section 23, it is clear that no juvenile shall be charged with or tried for any offence together with a person, who is not a juvenile but sub-section (2) of the said Act clearly stipulates that if a juvenile is accused of an offence, such juvenile and any person, who is not a juvenile would, but for the prohibition contained in sub-section (1) have been charged and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person. Thus, it is clear from the aforesaid provision that juveniles in conflict with law are to be tried and proceeded with by the Juvenile Justice Board in accordance with the provisions of the Act and the other accused persons, who are not juveniles, are to be tried by regular court. Even if a juvenile and an accused, who is not a juvenile, are required to be charged and tried together, their case is also to be separated and the other person, who is not a juvenile, is required to be referred by the Juvenile Justice Board to the regular court having jurisdiction for his trial. In a case where the accused is a juvenile, like in the instant case, and the proceeding with regard to the said offence is going on before the Juvenile Justice Board, while proceeding against the said accused, the Juvenile Justice Board finds from the evidence, which has come on record during proceedings before it, that any person other than the juvenile in conflict with law before him is also involved in that very offence, in my opinion, the Juvenile Justice board will not be silent expectator or without power to summon the said accused. Even Juvenile Justice Board in exercise of the power conferred in Section 319 Cr.P.C. for summoning the additional accused may summon either suo moto or an application filed by the prosecution. 23. The summoning of the additional accused is like taking cognizance of the offence against an accused and then to summon him to be charged with and tried along with other accused. 23. The summoning of the additional accused is like taking cognizance of the offence against an accused and then to summon him to be charged with and tried along with other accused. Obviously as in the case at hand, additional accused, if summoned on the basis of incriminating evidence coming against him, is not a juvenile, in view of Section 23 (2) of the Act, 2015 (section 18(2) of old Act) he cannot be charged and tried with by the Juvenile Justice Board and his trial is to be separated as required under sub-section (2) of Section 23 of the Act. 24. Hence, after the submissions and discussions above, this court is of considered opinion that the power under Section 319 of the Cr.P.C. can be exercised by the Juvenile Justice Board and if the summoned accused is found to be not a juvenile, his trial can be separated and such person can be sent for trial to the regular court of competent jurisdiction. 25. Resultantly, no ground is made out to interfere in the order dated 26.05.2022 passed by Juvenile Justice Board, Bulandshahar in Criminal Case No. 140 of 2015 (State vs. Saleem @ Julla). The Juvenile Justice Board is directed to proceed in accordance with law. 26. The instant revision is devoid of merit, and is hereby, dismissed.