Karnataka High Court
Mohamad Munna Alam vs State Of Karnataka on 5 December, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:50322
CRL.RP No. 1169 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 1169 OF 2024
BETWEEN:
MOHAMAD MUNNA ALAM,
S/O AAS MOHAMMED MILYA,
AGED ABOUT 32 YEARS,
BAHURA VILLAGE, BAHURVA POST,
MAHIRIYA STATION, JAGADISHPURA DISTRICT,
BIHAR STATE, C/O RABBANI MADRASA,
DEVASANDRA K.R, BENGALURU - 560 036.
...PETITIONER
(BY SRI. M. SHASHIDHARA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY MAHADEVAPURA P.S.,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
Digitally
signed by
MALATESH 2. MANJUNATHA,
KC S/O CHINNAPPA,
Location: AGED ABOUT 51 YEARS,
HIGH
COURT OF 3rd CROSS, HOODI VILLAGE,
KARNATAKA BENGALURU CITY - 560 048.
...RESPONDENTS
(BY SRI. VINAY MAHADEVAIAH, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 13/06/2024
PASSED BY THE HONBLE FTSC-V AT BENGALURU CITY IN CRL.
MISC.NO. 2499/2024 REGISTERED ON THE BASIS OF
APPLICATION FILED BY DLSA IN SPL.C. NO. 2451/2023
ORIGINATED FROM CRIME NO. 542/2014 OF RESPONDENT
POLICE, WHICH IS REGISTERED FOR OFFENCE PUNISHABLE
UNDER SECTION 201, 302, 376 R/W 34 OF INDIAN PENAL
CODE, SECTION 6 OF POCSO ACT AND SECTION 3 (2)(5) OF
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CRL.RP No. 1169 of 2024
SC/ST ACT, WHICH IS PENDING ON THE FILE OF THE HONBLE
FTSC.V, AT BENGALURU AND MAY PASS SUCH OTHER ORDER.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.M.Shashidhara, learned counsel for the revision petitioner and Sri.Vinay Mahadevaiah, learned High Court Government Pleader for the State/respondent.
2. Revision petitioner is accused No.1 in S.C No.2451/2023. He has been charge sheeted for the offences punishable under Section 6 of the Protection of Children from Sexual Offence Act (POCSO Act for short) and Sections 3(2)(v) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act (SC/ST Act for short) along with Sections 201, 302, 376 read with Section 34 of IPC.
3. Accused No.1 took up the contention that he is a juvenile. Without properly holding an enquiry as is contemplated under Section 34 of POCSO Act, learned Special Judge said to have passed an order holding that accused is not a juvenile. Same is called in question in this revision. -3-
NC: 2024:KHC:50322 CRL.RP No. 1169 of 2024
4. Sri.M.Shashidhara, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition contended that holding an enquiry as is contemplated under Section 34 of the POCSO Act is mandatory requirement before proceeding ahead with the merits of the case and therefore, sought for allowing the revision by setting aside the impugned order.
5. Sri.Vinay Mahadevaiah, learned High Court Government Pleader however supported the impugned Order contending that, after the amendment to the Juvenile Justice Act, it accused has crossed the age of 16, he shall be tried as an adult accused. Therefore, enquiry under Section 34 of POCSO Act is unnecessary.
6. In support of the arguments put forward on behalf of the revision petitioner, reliance is placed on the judgment of Coordinate Bench of this Court reported in ILR 2016 KAR 4205 in the case Siddu @ siddeshwar Vs., State of Karnataka through Hulsoor Police Station.
7. Relevant portion of the said judgment in paragraph Nos.24 and 25 are culled out hereunder for ready reference: -4-
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24. On perusal of the order passed by the Learned Special Judge and the Juvenile Justice Board and also the Investigating Officer, the above said procedure has not been followed. The Learned Special Judge has also discussed in detail about the medical report given by PW.8 and also PW. 18 and the documents produced by them for the purpose of determining the age of the accused. In my opinion, the said procedure adopted by the Learned Special Judge is against to the procedure contemplated under Rule 12 of the said Rules, 2007.
On this ground, the order deserves to be set-aside.
25. In the above said circumstances, when the Court has relied upon some documentary evidence on record, particularly the school records and also the records maintained by Mehakar D. Kendra, as narrated in the order by the Learned Special Judge, have to be tested as to whether they are the documents which can be safely and unerringly relied upon or if the Court comes to the conclusion that, if for any reason those documents cannot be relied upon as there is some doubt with regard to those documents, then the Court can refer the accused to the Medical Board and then after obtaining the opinion from the Medical Board, the Court can take appropriate decision in this regard. The Learned Special Judge has expressed so far as the documents Exs. P35 to P38 are concerned that they are the documents wherein an attempt was made to fabricate some of the contents of the said document. However, he relied upon one portion of the said document and rejected the other portion of the same document as manipulated (which is favourable to the accused) in corroboration to the evidence of PW.18 and Exs. P31 to 34. Under the above said circumstances, the Learned Special Judge has to apply his judicious mind as to when the same document gives two views, whether still the Court can unerringly rely upon such material coupled with inadmissible medical evidence. Therefore, in this regard, the Learned Special Judge has committed a serious error in relying upon the medical evidence issued by a non-competent person as the rule contemplate that the competency of giving certificate of age vests with the Medical Board.
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8. Further, Section 34 of POCSO Act reads as under:
"34. Procedure in case of commission of offence by child and determination of age by Special Court.--(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of 1[the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)].
(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a personas determined by it under sub-section (2) was not the correct age of that person."
9. In the light of the legal principles enunciated in the case of Siddu @ Siddeshwara supra and reading of the provisions under Section 34 of the Protection of Children from Sexual Offence Act, it is crystal clear that, before proceeding ahead on the merits of the matter, if a particular accused has raised the issue of his juvenility, the enquiry must be held with regard to the age of the accused as is contemplated under Section 34 of the Protection of Children from Sexual Offence Act and then pass appropriate order.
10. In the case on hand, passing the order without holding proper enquiry has thus resulted in miscarriage of -6- NC: 2024:KHC:50322 CRL.RP No. 1169 of 2024 justice calling for interference by this Court by exercising the revisional jurisdiction.
11. Therefore, impugned order needs to be set aside and matter is to be remitted to the learned Special Judge for holding an enquiry as is contemplated in the case of Siddu @ Siddeshwara supra.
12. Accordingly, the following:
ORDER
(i) The order passed in S.C No.2451/2023 is hereby set-aside.
(ii) Matter is remitted to learned Special Judge for holding an enquiry as is contemplated under Section 34 of the Protection of Children from Sexual Offence Act, and in the light of the legal principles enunciated in the case of Siddu @ Siddeshwara supra and then pass fresh orders, after affording suitable opportunity for the parties in accordance with law.
Sd/-
(V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 35/CT: BHK