Punjab-Haryana High Court
State Of Haryana vs Crl.Misc. No.A-1127-Ma Of 2 on 18 January, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
Crl.Misc. No.52432 of 2010 and
Crl.Misc. No.A-1127-MA of 2010 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl.Misc.No.52432 of 2010
and Crl.Misc. No.A-1127-MA of 2010
Date of decision: 18.1.2011
State of Haryana V. Mohan alias Monu
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR.JUSTICE M. JEYAPAUL
Present: Mr.G.S.Chahal, Additional Advocate General, Haryana
for the applicant-State.
M.Jeyapaul,J.(Oral)
Heard the submissions made by the learned Additional Advocate General, appearing for the State of Haryana.
2. There is delay of 22 days in filing the criminal appeal, challenging the order passed by the Juvenile Justice Board, Jhajjar ( hereinafter referred to as the"Board" ). As it is found that the delay of 22 days in preferring the criminal appeal had occasioned on account of administrative exigencies and it was neither deliberate nor intentional, we allow the application, condoning the delay of 22 days in filing the appeal. Criminal Misc. No.52432 of 2010 stands disposed of accordingly.
3. The learned Additional Advocate General, Haryana appearing for the appellant would submit that a perverse finding has been recorded by the Board in a very serious offence of kidnapping, rape, murder and screening of evidence punishable under Sections 363, 276, 302 and 201 of the Indian Penal Code. The last seen Crl.Misc. No.52432 of 2010 and Crl.Misc. No.A-1127-MA of 2010 2 theory and the extra judicial confession had not been analyzed in a proper perspective by the Board. Therefore, it is his submission that leave may be granted under Section 378(3) of the Code of Criminal Procedure ( hereinafter referred to as the "Code" ) to prefer the appeal as against the impugned order passed by the Board. It is his further submission that in case the Court comes to the decision that it has no jurisdiction to entertain any appeal, as per the provisions of Section 52 of the Juvenile Justice ( Care and Protection of Children) Act, 2000 ( hereinafter referred to as the "Act ), the appeal may be treated as a revision under Section 53 of the very same Act.
4. Sections 52 and 53 of the Act would read as follows :
"Appeals:- (1) Subject to the provisions of this section,any person aggrieved by an order made by a competent authority under this Act may,within thirty days from the date of such order, prefer an appeal to the Court of Session:
Provided that the Court of Session may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) No appeal shall lie from-
(a) any order of acquittal made by the Board in respect of a juvenile alleged to have committed an offence; or Crl.Misc. No.52432 of 2010 and Crl.Misc. No.A-1127-MA of 2010 3
(b) any order made by a Committee in respect of a finding that a person is not a neglected juvenile.
(3) No second appeal shall lie from any order of the Court of Session passed in appeal under this Section."
"Section: 53: Revision:- The High Court may, at any time, either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any competent authority or Court of Sessions 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:
Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard."
5. On a careful reading of the above provisions of law, it is found that there is a clear bar to prefer any appeal as against any order of acquittal passed by the Board in respect of a juvenile, who has allegedly committed an offence. Section 378 of the Code which governs the field of general procedure to prefer an appeal as against the acquittal passed by the Court below would not apply to this case when the said Act specifically debarred the aggrieved party to prefer Crl.Misc. No.52432 of 2010 and Crl.Misc. No.A-1127-MA of 2010 4 any appeal as against the order of acquittal passed by the Board. The special enactment has overriding effect over the general procedure contemplated under the procedural law. Therefore, applying the provision of Section 52(2) of the Act, we firmly hold that the criminal appeal, as such, preferred by the State of Haryana is not at all maintainable as against the order of acquittal recorded by the Board.
6. The next question that survives for consideration is as to whether the aggrieved party has any remedy before this Court as against the order of acquittal passed by the Board. The legislature in its wisdom has incorporated a revisional power for the High Court under Section 53 of the Act with a sole purpose of testing the legality and propriety of any order that may be passed by the Board or the Court of Sessions in connection with a case launched as against a juvenile. Therefore, it is always open to the aggrieved party to knock at the doors of the High Court invoking the revisional power under Section 53 of the Act to call for the record of the proceedings before the Board or the Court of Sessions to satisfy itself to the legality and propriety of the order passed by it.
7. We have thoroughly scanned the impugned judgment passed by the Board. In our considered view, the order passed by the Board is not tainted with any illegality or impropriety for the following reasons:
8. It is the case of the prosecution that the juvenile/accused who is the respondent in the case in hand, having kidnapped the minor girl, Pooja, committed rape on her and threw the dead body in Crl.Misc. No.52432 of 2010 and Crl.Misc. No.A-1127-MA of 2010 5 a well after murdering her. The prosecution has projected primarily the last seen theory and written confession Ex.P4/A suffered by the minor accused. Those, two material aspects sought to be established by the prosecution with wishy-washy evidence on its side, smack of self- contradiction and artificiality, and as a result of which, it inspires no confidence.
9. During the course of investigation, the juvenile accused, who was arrested, had allegedly made his written confessional statement. Such a written confessional statement Ex.P4/A alleged to have been given by the juvenile accused in the custody of the Investigating Officer suffers from legal sustainability. Such a confessional statement of a juvenile accused cannot be projected as a legal evidence to convict the accused.
10. PW11 Rajinder Singh would depose before the Board that the police officials were present at the scene of occurrence, when he arrived over there at 8 pm. But unfortunately the prosecution has come out with a story that the police officials received the first information only at 9.30 p.m. PW11 would further disclose that he had not spotted the accused at the scene of occurrence but it was only a person by name Bani who spotted the accused along with the victim but the prosecution in its wisdom has chosen not to examine such a vital witness Bani who alleged to have seen the accused and the victim together before the occurrence. At the same time the case of the prosecution that PW11 Rajinder Singh saw the accused and the victim together before the occurrence has received a jolt by the self contradictory version of PW11 Rajinder Singh. It has also been Crl.Misc. No.52432 of 2010 and Crl.Misc. No.A-1127-MA of 2010 6 projected that one Rajesh also spotted the accused with Pooja but the prosecution has not chosen to examine the said Rajesh also to establish the " last seen theory".
11. We also find that there are other material lapses on the part of the prosecution in not bringing home the guilt to the accused. PW9 Satbir Singh, the complainant in this case, would depose that he was in fact informed by a boy that the dead body of Pooja was fund in a well. Had such a boy been examined by the prosecution, he would have thrown some light on the mystery surrounding the death of minor girl Pooja. But the prosecution elected not to examine the said boy also.
12. PW9 Satbir Singh, the complainant in this case during the course of cross-examination, disowned the case of the prosecution that it was he who caught hold of the accused at the scene of crime and handed him over to the police. Very unfortunately the prosecution has come out with an unbelievable story that the juvenile accused was very much present in the crowd that collected at the scene of occurrence. No sane person who committed the crime would have chosen to make his presence at the scene of occurrence even after a crowd had collected over there. With the above feeble and rickety evidence, the prosecution has sought to convict the juvenile accused. The Board, having not been satisfied with the materials produced before it to establish the case of the prosecution beyond reasonable doubt, chose to acquit the juvenile.
13. The above detailed discussion embarked upon by us, would also rule out the scope of entertaining any revision under Crl.Misc. No.52432 of 2010 and Crl.Misc. No.A-1127-MA of 2010 7 Section 53 of the Act challenging the legality or propriety of the impugned order.
14. For all these reasons, we find that the application filed by the State of Haryana, appellant herein, seeking leave to prefer appeal merits not consideration and, therefore, it stands dismissed.
( M. Jeyapaul ) Judge (Satish Kumar Mittal ) 18.1.2011 Judge sks
1. To be referred to the Reporter or not ?
Crl.Misc. No.52432 of 2010 and Crl.Misc. No.A-1127-MA of 2010 8