Jharkhand High Court
Raju Yadav Alias Raju Mahato And Anr vs The State Of Jharkhand And Anr on 5 August, 2015
Author: R.N. Verma
Bench: Ravi Nath Verma
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 997 of 2014
1. Raju Yadav @ Raju Mahato
2. Duryodhan Yadav
Both sons of Praver Yadav, resident of village Telkari, PO & PS
Karmatand, District- Jamtara
.... .... Petitioner
--Versus--
1. State of Jharkhand
2. Kamdeo Yadav, son of Badri Yadav, resident of village Telkairi,
PO & PS Karmatand, District- Jamtara .... .... Opposite Parties
For the petitioners : M/s. Kaushik Sarkhel, Advocate
For the State : Mr. Md. Hatim, A.P.P.
For the opposite party no.2 : M/s. Anil Kumar Jha &
Arun Kumar Sahay, Advocates
CORAM: HON'BLE MR. JUSTICE RAVI NATH VERMA
-----------
C.A.V. ON: 16/07/2015 PRONOUNCED ON-05/08/2015
Challenge in this revision application is to the order dated
09.09.2014passed by Sessions Judge, Jamtara in Criminal Appeal no. 44 of 2014 whereby and whereunder the court has allowed the appeal preferred by the present opposite party no.2 against the order dated 19.06.2014 passed by learned Principal Magistrate, Juvenile Justice Board, Jamtara in Karmatar P.S. Case no. 11 of 2010 wherein a petition filed by the opposite party no.2 under Section 319 of the Code of Criminal Procedure (in short "the Code") was rejected being not maintainable.
2. The prosecution case, as it reveals from the fardbeyan of the informant Kamdeo Yadav the present opposite party no.2, is that on 05.03.2010, while this informant was in his field, he saw his nephew Binod Yadav talking with one Dinesh Yadav and his brother- in-law Balram Yadav and at about 4.00 p.m., all the three above persons went to Karmatar on a motorcycle and his nephew conveyed him that he along with those two persons are going to watch a programme of a Bhojpuri Singer at village Baskupi. When the nephew of the informant did not return in the night and even in the 2 morning, then the mother of the informant went to the house of Dinesh Yadav and enquired about Binod Yadav, but she replied that her son has gone to Tata. It is also alleged that after some time, one Duryodhan Yadav came to his house and informed that Binod Yadav has not accompanied Dinesh Yadav to Tata. Thereafter, the family members of the informant tried to search Binod Yadav, but could not find him. On 07.03.2013 at about 3.00 P.M., some women of the village, who had gone to ease themselves towards the western side of the village, saw a dead body floating in a well. On hearing this information, the informant along with his family members went there and identified the body as of his nephew Binod Yadav. The informant suspects that as his nephew Binod Yadav had talking term with the wife of Dinesh Yadav, the family members of Dinesh Yadav were annoyed of Binod Yadav, they having common intention killed his nephew (Bhagina) Binod Yadav and with the intention to conceal, thrown the dead body in the well.
3. After completion of the investigation, the police submitted the charge sheet against only two accused persons namely Dinesh Yadav and Balram Yadav and submitted the final form against the petitioners and accordingly, the learned chief Judicial Magistrate took cognizance of the offence under Sections 302, 201 and 34 of the Indian Penal Code against Balram Yadav and Dinesh Yadav. Whereafter, a petition was filed by the present opposite party no.2 before the said court to summon the petitioners also to face trial, but the said petition was rejected by the court of learned Chief Judicial Magistrate vide order dated 04.09.2010. It appears that the case of Balram Yadav and Dinesh Yadav was referred to Juvenile Justice Board, Jamtara as they were declared juvenile by competent court for proper inquiry i.e. trial. Accordingly, the inquiry as contemplated under Juvenile Justice (Care and Protection of Children) Act (hereinafter referred to as "the Act") was initiated against Balram Yadav and Dinesh Yadav. After examination of almost 13 witnesses, a petition was filed before the Juvenile Justice Board by the 3 prosecution under Section 319 of the Code praying therein to summon the petitioners also to face the trial but the learned Juvenile Justice Board, Jamtara vide order dated 19.06.2014 rejected the prayer of the prosecution holding the same as not maintainable. Aggrieved by the said order, the opposite party no.2 preferred appeal before the Sessions Judge, Jamtara and the said court allowed the appeal and remitted the matter to the court below for hearing the parties afresh and pass necessary order using its jurisdiction under Section 323 of the Code, if the learned court below finds sufficient evidence to proceed against the two petitioners namely Raju Yadav and Duryodhan Yadav. The petitioners being aggrieved by the order of the appellate court, preferred this revision.
4. Learned counsel Mr. Kaushik Sarkhel appearing for the petitioners submitted that the order impugned is against the mandates of Section 18 of the Act and when a trial/inquiry is going on before the Juvenile Justice Board pertaining to juvenile in conflict with law, even if during the trial some incriminating circumstances come against a person not being an accused, the Board is debarred under the provisions of the Act to entertain an application filed under Section 319 of the Code for summoning the said person as additional accused. According to the learned counsel, Section 18(1) of the Act clearly stipulates "no juvenile shall be charged with or tried for any offence together with a person, who is not a juvenile" and the Juvenile Justice Board has the exclusive jurisdiction to charge and try only a juvenile in conflict with law. In support of his contention, learned counsel has relied on two unreported judgments of High Court of Judicature at Patna; Baleshwar Prasad Vs. the State of Bihar and others passed on 17.06.2014 in Criminal Revision no. 417 of 2014 and another unreported judgment; Ramsevak Yadav Vs. the State of Bihar and others passed on 18.06.2013 in Criminal Miscellaneous Case no. 14509 of 2011 wherein a petition was filed for summoning the accused persons in exercise of power under Section 319 of the Code, the Juvenile Justice Board, Saran at Chhapra rejected the 4 prayer vide order dated 03.09.2013 holding that the Juvenile Justice Board cannot pass any order against the major person, who has never been made accused and the said order was affirmed by the Hon'ble High Court. Hence, the order impugned deserves to be set aside.
5. Contrary to the aforesaid submissions, learned counsel representing the opposite party no.2 seriously contended that the order passed by the learned Sessions Court is within the provisions of law and sub-section(2) of Section 18 of the Act clearly stipulates that if an additional accused has been summoned on the basis of incriminating evidence coming against him, is not a juvenile what has been prohibited under sub-section(2) of Section 18 is to charge and try a juvenile for an offence together with a person, who is not a juvenile and not the summoning of a person, who is not a juvenile as an additional accused and after summoning of such person, his trial can be separated and sent for trial by a regular court under the above provision of the Act.
6. The question, which has come up for consideration and determination by this court is whether the Juvenile Justice Board has the jurisdiction to entertain an application under Section 319 of the Code for summoning a person as an additional accused, who is not a juvenile?
7. 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 5 under Section 173 of the Code, 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 of the Code, the trial court has been empowered under Section 319 of the Code to summon the said person as an additional accused. For better appreciation of the issue involved in this case, Section 319 of the Code 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."
8. From bare perusal of the aforesaid provision, it is clear that Section 319 of the Code empowers a Court to proceed against any person not shown as an accused if it appears from the evidence 6 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 added accused should be taken in the same case and in the same manner as against the original accused. This 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. Section 18 of the Act 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, 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."
9. From the plain reading of sub-section(1) of Section 18, 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 for which under Section 223 of the Code or any other law for the time being in force, such juvenile and any person, who is not a juvenile 7 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 of the Code for summoning the additional accused may summon either suo moto or an application filed by the prosecution.
10. 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 18 (2) of the 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 18 of the Act. Hence, in my opinion, the power under Section 319 of the code can be exercised by the Juvenile Justice Board and if the summoned accused 8 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. In a case Raju & Others Vs. State of Haryana and another reported in 2004 SCC OnLine P & H 717 equivalent to (2004) 4 RCR (Cri) 242, the Hon'ble High Court in Criminal Revision no. 679 of 2004 disposed of on 30.07.2004 held as follows:-
"A plain reading of the S. 319 CrPC makes it clear that when it appears to the Court from the evidence that any person not being an accused has committed an offence, the Court may proceed against such person. The legislative intent is very clear and it does not call for exhaustive consideration. At the time of summoning, the trial Court is not to see as to whether the person who is to be proceeded against is a juvenile or not. That stage will come only when the accused appears before it and claims to be a juvenile. In case, he can prima facie show to the court on the basis of any documentary evidence that he was a juvenile at the time of alleged occurrence, his case can be segregated from others for the purpose of trial or he can be sent to Juvenile Board as well with regard to determination of his age. If later any accused turns out to be a juvenile, the forum and the manner of trial would automatically change. Summoning and trial are evidently mutually exclusive; S.18 sub-section (2) of the Act deals with similar type of situation. If the accused who is not a juvenile, has been charged and tried together with the juvenile, the Board taking cognizance of offence can direct separate trial of the Juvenile and other person on account of prohibition contained in Section 18 of sub- section (1) of the Act. On the same analogy, if trial Court after summoning the accused U/s 319 Cr.PC comes to the conclusion that the person against whom proceedings have been initiated is, in fact, a juvenile, his trial can be held under the Act. In other words it can be said that the trial is prohibited and not the summoning. In case, arguments advanced by learned counsel for the petitioners are accepted, it would be giving handle to the Investigating Agency not to challan the accused, who simply claims to be a juvenile, and, therefore, the trial Court would also be precluded from summoning the said accused under S.319 CrPC. In other words, it amounts to overreaching the law."
11. In view of the aforesaid discussions and the ratio decided in the aforesaid judgment of the Hon'ble P & H High Court, in my opinion, the Juvenile Justice Board has every power and jurisdiction to entertain an application filed under Section 319 of the Code for 9 summoning the additional accused and after summoning if that person is found not to be a juvenile, his case would be separated and sent for trial to a regular court of competent jurisdiction. The only prohibition for a juvenile justice Board is that he cannot charge and try a juvenile for an offence together with a person, who is not a juvenile but such prohibition does not debar the Juvenile Justice Board from taking cognizance and summoning a person against whom some incriminating evidence comes during the trial. From perusal of the two unreported judgments cited by the learned counsel for the petitioners, it is clear that the Hon'ble Court without analyzing the issue involved affirmed the orders of courts below. No plausible ground has been argued before this Court by the learned counsel for the petitioners to interfere in the order impugned. The Juvenile Justice Board, Jamtara is directed to proceed in accordance with law considering the direction of the learned Sessions Judge, Jamtara and observation made in this revision application.
12. The revision application, being devoid of any merit, is, hereby, dismissed.
(R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 5th August, 2015 Ritesh/N.A.F.R.