Delhi District Court
Rajeev Mathur vs State on 30 September, 2020
IN THE COURT OF SHRI ANIL ANTIL
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I.D No. : DLND010114922019
Criminal Revision Number : 366/19
Rajeev Mathur,
R/o H. No. D1/1353,
Vasant Kunj,
New Delhi
....Revisionist
Versus
State
Through, NCT of Delhi
....Respondent
Date of filing of Revision Petition : 06.07.2019
Date of receipt of file in this Court : 08.07.2019
Date when arguments were heard : 19.09.2020
Date of Order : 30.09.2020
Decision : Revision allowed
ORDER
1. The present criminal revision has been filed by the revisionist under Section 397 read with Section 399 of Cr. PC for setting aside the charge/order on charge dated 28.05.2019 along with order on taking cognizance/summoning order dated 21.11.2017, passed by the learned MM05, Patiala House Courts, New Delhi, in the consequential proceedings arising out of case/FIR No. 348/15, PS Vasant Kunj South.
2. The short question that arises for consideration is that the revisionist CR No. 366/19 Rajeev Mathur Vs. State Page 1 of 7 herein has been discharged for an offence punishable under Section 363 IPC and has been directed to face the trial for an offence under Section 23 of the Juvenile Justice Act, which is punishable for simple imprisonment for a period of six months or fine or both; the charge sheet filed in the case about two years and four months from the date of the complaint. The charges so framed under the said Section are alleged to be time barred in terms of the provisions of Section 468 of the Cr. PC.
3. Briefly stated, the facts of the case, as per charge sheet are that a complaint dated 31.03.2015 was lodged with the police with regard to lost and found of a child namely Rakesh Yadav, aged about 13 years as he was found in a helpless condition near to the Institute of Liver. On the basis of the said information, a case/FIR was registered under Section 363 of IPC. During investigation, the child's statement was recorded under Section 164 Cr. PC on 01.04.2015 and thereafter another Section 23 of the Juvenile Justice Act was added. In the meanwhile, the Child Welfare Committee, South East District, also initiated proceedings wherein the revisionist was directed to pay Rs. 6300/ vide order dated 15.06.2015. Further, the charge sheet in the above case was filed on 23.10.2017.
The learned trial court thereafter took cognizance of the offence and summoned the revisionist herein vide order dated 21.11.2017.
The revisionist appeared before the learned trial court and the court was pleased to frame charge against the revisionist under Section 23 of the JJ Act vide order dated 28.05.2019.
4. GROUNDS, as argued by the learned counsel for the Revisionists:
I) that the learned trial court has failed to consider the vital material on record while passing the said impugned order, summoning the revisionist;CR No. 366/19 Rajeev Mathur Vs. State Page 2 of 7
ii) that the FIR in the present case was registered under Section 363 IPC on 31.03.2015; during investigation, the statement of the child was recorded under Section 164 Cr. PC on 01.04.2015 and thereafter another Section 23 JJ Act was also added for which the revisionist was summoned to face the trial; the charge sheet in the above case was thereafter filed on 23.10.2017 and the trial court took cognizance of the offence on 21.11.2017, which is much beyond the limitation as prescribed under Section XXXVI of the Cr. PC, as envisaged under Section 468 of the said Act;
iii) that the learned trial court failed to appreciate that the offence under Section 23 of the JJ Act is punishable with imprisonment for a term, which may extend to six months or fine or both;
iv) that the learned trial court has failed to appreciate that the charges cannot be framed in the case at hand as it is contrary to the provisions of Section 468 Cr. PC.
v) that it is submitted that vide impugned order dated 28.05.19, the learned Magistrate was of the view that the provisions of offence under Section 363 IPC cannot be invoked against the applicant and he was accordingly discharged under Section 363 IPC. However, it was stated that the offence under Section 23 of the JJ Act is made out and accordingly he was put to trial for committing an offence under the said Section of the JJ Act.
It is thus prayed that the impugned order passed by the learned MM is contrary to the law and facts on record. There are glaring and pertinent illegalities in the order and hence the revisionist be accordingly discharged from the said case.
5. On the other hand, the filing of the present revisions has been opposed by the learned Additional PP arguing that the offences cannot be dissected and bifurcated after the charge sheet was filed by the learned MM and it cannot be said that once the applicant is discharged of the main section, the cognizance of offence under other CR No. 366/19 Rajeev Mathur Vs. State Page 3 of 7 section is beyond limitation, or the trial in that case thus stands vitiated. It is stated that the charge sheet has to be as a whole, and undoubtedly, in the present case, the revisionist was also charged under Section 363 IPC along with Section 23 of the JJ Act, for which no limitation period is prescribed and it cannot be said that the cognizance of the offence is in contravention to limitation provisions.
That the cognizance of the offence taken by the learned trial court and the summoning order pursuant thereto under Section 23 of the JJ Act is valid and legal and there can be no ambiguity about the same.
6. I have heard the submissions made by the learned counsels at bar and have also meticulously gone the record of the trial court .
7. There is no doubt that the charge sheet was filed for the offences punishable under Section 363 IPC and Section 23 of the JJ Act but what is to be noted is that there was absolutely nothing on record, not even prima facie, to indicate the essential ingredients to make out an offence punishable under Section 363 IPC. The complaint filed on behalf of Butterflies Childline Care and the FIR registered pursuant thereto are completely found lacking with regard to the allegations of kidnapping. The statement recorded under Section 161 Cr. PC before the learned Magistrate and subsequent addition of offence under Section 23 of the JJ Act also nowhere reflects the ingredients to make out a case of kidnapping. It merely talks about lost and found abandoned child. So in these circumstances, I fail to understand as to why and for what reason the offence under Section 363 IPC was invoked by the investigating agency. There was absolutely no basis to invoke the said Section. The complaint, FIR and the statement of the witness are explicit in that regard.
8. Insofar as Section 23 of the JJ Act is concerned, the offence is cognizable, bailable and punishable for a term which may extend to six months or fine or both. At CR No. 366/19 Rajeev Mathur Vs. State Page 4 of 7 this juncture, we may also take note of the provisions of Section 468 Cr. PC which envisaged "bar to taking cognizance after lapse of the period of limitation" and in the present case, the limitation is one year as per sub clause (b) Clause 2 of Section 468 Cr. PC.
9. In the present case, the FIR was registered on 31.03.2015, statement of child under Section 164 Cr. PC was recorded on 01.04.2015 and Section 23 JJ Act was thereafter added. The charge sheet in the case was filed on 23.10.2017 and the trial court took cognizance of the offences on 21.11.2017, i.e. about more than two years and six months.
10. The provision of clause 3 of Section 438 may also be taken note of vide which states that for the purpose of this Section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
11. It is thus evident from the record that offence under Section 363 IPC definitely was not made out in the facts of the case, as discussed above. There are no allegations even remotely to suggest that the offence under Section 363 IPC is alleged to have been committed. Police Officer cannot be permitted to blindly invoke the provisions of law and thereafter plead that accused has been charged with a major/serious offence and the limitation be reckoned in accordance to that. Which cannot be done directly, cannot be permitted to done indirectly.
12. The nature of the offence as gathered from the complaint and the FIR available at the relevant time of the FIR is undoubtedly to the best only under Section 23 of the JJ Act for which the limitation period of taking cognizance is one year. And in CR No. 366/19 Rajeev Mathur Vs. State Page 5 of 7 the case at hand, admittedly, the applicant/accused was discharged under Section 363 IPC and rightly so, and the cognizance of the offences is taken after two and a half years or so is definitely beyond the limitation period prescribed in terms of Section 468 (2) (b) Cr. PC.
13. It must also be stated that the word "cognizance" has been used in the Code to indicate the points when the Magistrate or the Judge for the first time takes judicial notice of an offence. The underline policy of law and objective of cognizance is to ensure a judicial check on the police, as a Judicial Officer by taking cognizance examines whether the offences have been actually made out or not, whether an offence has been committed or not and it cannot be a matter of routine passed in a mechanical manner. Useful reference in this regard be made to the case of "R.R. Chari Vs. State of U.P. 1951 SCR 312; Fakruddin Ahmad Vs. State of Uttranchal 2008 AIR SCW 5881 & Uma Shankar Vs. State of Bihar (2010) 9 SCC 479."
14. Thus, in the totality of facts and circumstances, I am of the view that the cognizance of the offence under Section 23 of the JJ Act by the learned MM after the expiry of limitation and subsequent proceedings arising therefrom are contrary to the provisions of law. The order dated 28.05.2019 and 21.11.2017 cannot be legally sustained and are thus accordingly set aside. The revisionist/accused namely Rajeev Mathur thus accordingly stands discharged for an offence punishable under Section 23 of the JJ Act. Revision petition stands allowed and disposed of accordingly.
15. Trial Court Record be sent back to the concerned Ld. Trial Court along with copy of this order.
CR No. 366/19 Rajeev Mathur Vs. State Page 6 of 716. Revision file be consigned to record room after completion of all other necessary formalities.
Announced in the open (ANIL ANTIL)
Court on 30.09.2020 ADDITIONAL SESSIONS JUDGE04
(through Video Conferencing) PATIALA HOUSE COURTS
NEW DELHI
CR No. 366/19 Rajeev Mathur Vs. State Page 7 of 7