LEELA DHAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This application u/ S. 482, Cr. P.C. for quashing the proceedings in a Criminal Case No.1190 of 1990 pending in the Court of Chief Judicial Magistrate, Hamirpur which was initiated on the complaint filed by the complainant/ opposite party. The first submission in the case is that all the witnesses named in the complaint were not examined by the learned Magistrate before issuing summons to the accused persons, as required under the provisions of S. 202, Cr. P.C. which is exclusively triable by the Court of Sessions. The case admittedly is u/Ss. 302/ 147/ 148/ 149, IPC. Along with the complaint, a list of witnesses of nine persons have been mentioned. Out of those, nine witnesses, six witnesses have been examined by the court below. Three witnesses, namely Lallu s/o Tahlu Mumhar, Mishiria s/o Dharam Das Chamar and Moniya s/o Tahlu Chamar were not examined. The argument of the learned counsel is that the complainant has not submitted any written application nor made any oral statement before the Magistrate concerned that he does not propose to examine these three witnesses. The argument is that the orders summoning the accused person is wholly illegal and liable to be quashed. I do not consider that this omission to make a statement or give in writing that the complainant do not propose to examine three witnesses would vitiate the order of summoning of the accused persons, it shall be presumed that the complainant examined only six witnesses whom the complainant will be entitled to examine in the Sessions Court. It is clear that the complainant will not be permitted to examine Lallu, Mishiria and Moniya as witnesses in the Sessions Court when the case is committed to the Court of Session. The first submission of the applicant has no force and thus repelled.

(2.) The next submission of the learned counsel for the accused is that the applicant Nos. 1 to 3, namely, Leela Dhar, Raj Pal Singh and Hira were aged about 10 and 11 years at the time of incident and on the date of summoning of the accused person, they were aged about 12 and 13 years. The submission of the learned counsel for the applicant is that the court below has no jurisdiction to summon the aforesaid accused persons for facing trial u/ Ss. 301/ 147/ 148/ 149, IPC. The learned counsel pointed out the provision of S.24 of the Juvenile Justice Act, 1986 and submitted that the applicant Nos. I to 3, who were admitted Juvenile were not liable to be prosecuted along with the other accused persons in some case by the said Court. The provision of S. 24 of the said Act is quoted as under : "24. No joint trial of Juvenile and person not a Juvenile : -

(3.) Since the question whether the applicants Nos. 1 to 3 were juvenile on the date of incident is to be enquired into by the courts below, it appears that this question was never canvassed before the courts below. As such, it would be necessary that the applicant shall move an application before the Sessions Judge and it shall be his duty to adjudicate after obtaining report of the Civil Surgeon or Medico Legal Expert to ascertain the present age to bring at the correct age at the time of the incident. If anything is found that on the date of incident, all these applicants No. 1 to 3 were of juvenile age, their trial shall be proceeded according to the provisions of the Act.