Delhi District Court
Ms. Seema vs Akash on 29 November, 2018
Criminal Revision No.207/2018
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 207/2018
Under Section : 397-399 Cr.P.C.
FIR No. : 425/18
PS : Kalyan Puri
CNR No. : DLET01-007276-2018
In the matter of :-
MS. SEEMA
D/o. Sh. Phool Singh,
R/o. E-19/88, 11-12 Jhugi Indra Camp,
Kalyan Puri, Delhi.
............PETITIONER
VERSUS
1. AKASH
S/o. Sh. Phool Singh,
R/o. E-19/1, 11-12 Jhugi Indra Camp,
Kalyan Puri, Delhi.
2. STATE
.........RESPONDENTS
Date of Institution : 16.10.2018
Date of reserving order : 28.11.2018
Date of pronouncement : 29.11.2018
Decision : Petition is dismissed.
ORDER
1. This revision petition is directed against order dated 17.09.2018, passed by trial court in a case titled as State v. Akash, bearing FIR no. 425/2018, under Section 376 IPC, PS Kalyan Puri, Delhi. Vide impugned order dated 17.09.2018, trial court i.e. court of ld. CMM (East) had concluded that accused (respondent no. 1 herein) was Page 1 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.207/2018 minor at the time of commission of offence and hence, he was directed to be produced before JJB-IV.
BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts leading to filing of this revision petition are that complainant/petitioner herein Ms. S (hereinafter referred to as complainant) filed a complaint against accused, thereby alleging that accused is residing in the nearby jhuggi of same vicinity i.e. Kalyan puri Indira Camp, where she is residing. She further alleged that accused was stalking her for the last one year and was pressurising her to marry him, though he was already married and having six months daughter. It is further alleged that on 07.08.2018, when she was going to Bank, accused met her and took her to Greater Noida and made there forcible physical relations with her on the same day. After making forcible physical relations with complainant, accused proposed her for marriage and thereafter, he continued to make physical relations with her for six days. She further alleged that on 12.08.18 accused left her at No. 1 School. Complainant did not disclose about all these incidents to any one as her mother had already died and her father was a drunkard . She further alleged that on the day of registration of complaint i.e. 16.08.2018, sister and aunt (Mausi) of accused met her and threatened her to implicate her brother and uncle (Chaha) in a false rape case, in case she divulged alleged incidents of rape with her to any one and thus, she filed complaint against the accused.
3. Ld. CMM (East), vide impugned order dated 17.09.2018, had observed accused to be minor at the time of commission of offence i.e. 07.08.2018 after going through the documents i.e. the first attended school of the accused i.e. East Delhi Nagar Nigam Vidyalaya Kalyanpuri, Delhi, wherein date of birth of the accused was Page 2 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.207/2018 mentioned to be 12.02.2001 and hence, accused was directed to be produced before JJB-IV.
GROUNDS : -
4. Being aggrieved of impugned order dated 17.09.2018, petitioner has preferred this revision petition mainly on the following relevant grounds :-
● That the impugned order passed by trial court is highly unlawful, illegal, arbitrary and perverse, which is based on surmises and conjectures and same is liable to be set aside as trial court did not appreciate the evidence on record properly.
● That trial court did not appreciate that the documents on the basis of which, impugned order was passed, thereby concluding the accused to be a juvenile at the time of commission of offence was not an authentic piece of proof of age, as same was not on the basis of any birth certificate issued by any authority, but on the basis of an affidavit filed and sworn by his father on the basis of his memory only, which may not be a correct piece of age proof. Ld. counsel for accused relied upon case law titled as Biradmal Singhvi v. Anand Purohit, AIR 1988 SC 1796; Vishnu v. Maharashtra (2006) 1 SCC 283; Bhoopram v. State of UP (1983) 3 SCC 1; Umesh Chandra v. Rajasthan, AIR 1982 SC 1057; Daya Chand v. Sahib Singh (1991) 2 SCC 438 and Jyoti Prakesh v. Bihar, AIR 2008 SC 1696.
● That trial court failed to appreciate that accused was major at the time of commission of offence as he is resident of Kondli constituency and he had been issued voter identity card by the Election Commission, which depicts that accused was above the age of 18 years.
● That trial court failed to appreciate the amended law vide which Page 3 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.207/2018 age of 18 years has been reduced to 16 years in henious case like rape and thus, accused was adult/major on the day of commission of offence.
APPRECIATION OF ARGUMENTS, FINDINGS AS WELL AS DECISION:
5. Submissions were invited regarding maintainability of this revision petition before this court, on the basis of objection raised by ld. Addl. PP for State that this revision petition is not maintainable before this court. Ld. APP referred to Section 102 JJ Act 2015 (hereinafter referred to the Act) to submit that as per this provision, any revision petition challenging the legality of order passed by ld. CMM could be preferred before High Court only.
6. Per contra, ld. LAC for petitioner submitted that the revision petition is well maintainable before this court by virtue of Section 399 Cr.P.C., which provides for concurrent revisional jurisdiction of High Court as well as Sessions Court.
7. Thus, a limited question is involved herein regarding applicability of Section 102 of the JJ Act and Section 399 of Cr.P.C. Section 397 Cr.P.C. provides for power of revision conferred upon High Court or Sessions Judge and Section 399 Cr.P.C. provides for concurrent power upon the Sessions Court, which may be exercised by High Court u/s 401 Cr.P.C. However, Section 102 JJ Act 2015 provides as under:-
"The High Court may, at any time, either on its own motion or on an application received in this behalf, call for the record of any proceeding in which any committee or board or Children's Court, or court has passed an order, for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto, as it thinks fit."
8. Unlike above-mentioned provisions of Cr.P.C., JJ Act is silent in Page 4 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.207/2018 respect of concurrent powers of Sessions Judge to exercise revisional jurisdiction over any order passed by the court. It is worth to note that the power of revision referred in Section 102 of the JJ Act extends over any order passed by a court, apart from the orders passed by Child Welfare Committee or JJ Board or Children's Court.
9. Thus, an order passed by a Magistrate is well covered within ambit of Section 102 JJ Act. Section 103 (2) of the Act provides that the procedure to be followed in such revision petition under this Act shall be as far as practicable, in accordance with provisions of Cr.P.C. Thus, it is only about the procedure to be adopted as provided in Cr.P.C., rather than providing for concurrent revisional jurisdiction upon High Court and Sessions Judge simultaneously.
10.Ld. LAC relied upon provisions of Cr.P.C. to submit that this court would have concurrent jurisdiction alongwith High Court. However, it has to be appreciated that Cr.P.C. is a general enactment, though, JJ Act is a special enactment. Legislature is presumed to be conscious of general law regarding concurrent revisional jurisdiction upon High Court and Sessions Judge under Cr.P.C., while enacting this special law. Still, the specific provisions of Cr.P.C. to provide for such concurrent revisional jurisdiction, were not so incorporated under this special enactment. Such omission has to be taken as a conscious omission on the part of legislature, so as to do away with revisional jurisdiction of Sessions Judge, in respect of orders falling under this Act. The special enactment has to prevail upon the general enactment and therefore, the provisions u/s 102 of the Act has to be given effect in its literal sense. Since, this Act does not provide for concurrent revisional jurisdiction of Sessions Judge, therefore, it cannot be said that by virtue of provisions of Cr.P.C, this revision petition would lie before this Court. Therefore, I am not in agreement Page 5 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.207/2018 with contentions of ld. LAC for petitioner. The inevitable conclusion would be that this revision petition is not maintainable before this court i.e. Sessions Court. Hence, same is dismissed.
11. TCR along with copy of order be sent back to the trial court. Revision file be consigned to record room as per rules.
Digitally signed by PULASTYA PRAMACHALAPULASTYA Location: Court No.3, Karkardooma Courts, PRAMACHALA Delhi Date: 2018.11.29 16:27:03 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 29.11.2018 Special Judge (PC Act) CBI, East (This order contains 6 pages) Karkardooma Courts, Delhi Page 6 of 6 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi