K. Vasudeva Naidu vs Ravi and Others

P.D. Dinakaran, J.—Heard the Learned Counsel for the petitioner.

The above revision is directed against the order of acquittal dated 17.4.1995 in C.A. No. 13 of 1994 on the file of the learned District and

Sessions Judge, Chengalpattu reversing the order of conviction, convicting Al for the offence punishable under Ss.307, 326 read with S.149,

I.P.C. and sentencing him to undergo two years rigorous imprisonment and two years rigorous imprisonment respectively and both to run

concurrently and convicting A2 to A4 for the offence punishable under Ss.307 read with 147, I.P.C. and 326 read with S.149, I.P.C. and

sentencing him to undergo two years rigorous imprisonment for each of the said offences and all to run concurrently.

The respondents 1 to 5 were facing a trial as Al to AS before the learned Assistant Sessions Judge in S.C. No. 13 of 1993 for the offences

mentioned above, with regard to an alleged occurrence said to have taken place on 6.6.1992 at 8.30 am when the respondents 1 to 5 were said to

be unlawfully assembled and attacked PW1 in front of the house of PW6, Al stabbed PW6 by using a knife, with a criminal intention to murder

PW6, attacked on his left and right shoulders and A1 and A2, with an intention to murder PW6, attacked PW6 by their respective knife and A3

also attacked PW6 by using a knife on the head and stomach and caused grievous injuries while A2, A4 and A5 attacked PW6 by using Casurina

stick and caused grievous injuries. In the course of the said occurrence A1, A2, As also caused minor injuries on PWs 5 and 7.

According to the prosecution, respondent accused attacked PWs 5, 6 and 7 as they prevented the respondent-accused from taking electric

wire over their house on the strength of an order of injunction granted by the learned District Munsif at Ponneri.

On behalf of the prosecution, fourteen witnesses were examined as PWs 1 to 14, eleven documents were marked as Exhibits P1 to P11 and

eight material objects were produced as MOs 1 to 8, while, four witnesses were examined as DWs 1 to 4 and six documents were marked as

Exhibits D1 to D6, on behalf of the respondent-accused, in the defence.

The learned Asst. Sessions Judge, by his order dated 14.2.1994, in the light of the evidence of PWs 1 to 14 and Exhibits P.1 to P. 11 and

material objects 1 to 8, convicted the respondent-accused. Accordingly, the first respondent-A1 was convicted for the offence punishable under

S.307 and 326 I.P.C. read with S.149, I.P.C. and sentenced to undergo two years rigorous imprisonment for each of the offences, and both the

sentences to run concurrently. Similarly, A2 to A4 were convicted for the offence punishable under S.307 read with 149, I.P.C. as well as S.326

read with S.149, I.P.C. and were sentenced to undergo two years rigorous imprisonment for each offences, respectively, but admonished A5 for

the said charges. On appeal, the learned Principal Sessions Judge, Chengalpattu in C.A. No. 13 of 1994, acquitted the respondents 1 to 4, by an

order dated 17.4.1995. Hence the above revision.

The learned Principal Sessions Judge, in the said order dated 17.4.1995, set aside the order of learned Asst. Sessions Judge dated 14.2.1994

in S.C. No. 13 of 1993 merely on the ground that the trial Court ought not to have tried the juvenile, namely, the fifth respondent along with

respondents 1 to 4 and therefore convicted the petitioner.

The Learned Counsel for the petitioner contends that assuming the learned principal Sessions Judge is right in setting aside the order of the

learned Asst. Sessions Judge dated 14.2.1994 in S.C. No. 13 of 1993, the learned Sessions Judge ought to have remitted the matter back to the

learned Asst. Sessions Judge to try the case separately for the accused-respondents 1 to 4 and 5th respondent in view of S.464, Cr.P.C. for the

reason that the order of the learned Asst. Sessions Judge dated 14.2.1994 is not sustainable in law, as per S.24 of Juvenile Justice Act, 1986 read

with S.223. Cr.P.C.

No appearance on behalf of the respondents.

The learned Government Advocate, while assisting the Court, invited my attention to Ss.24, 39 of Juvenile Justice Act and S.464, Cr.P.C. He

also invited my attention to the reasons and findings of the learned principal sessions Judge, while setting aside the order of the learned Asst.

Sessions Judge dated 14.2.1994 and acquitting the respondent-accused for the offence punishable under S.307 read with 149, I.P.C. merely on

the ground that there was no finding that the respondent 1 to 4 have committed the offence punishable under S.147 and 148, IPC. and contends

that the said finding is erroneous in law inasmuch as the offence punishable under S.147 and 148, I.P.C. merges with the offence punishable under

S.307 read with 149 as well as 326, read with 149 Cr.P.C.

The learned Government Advocate further points out that the reasons of the learned Principal Sessions Judge for not remanding the matter,

namely, that there is no gainful purpose in remanding the mater is not tenable in law inasmuch as the respondent accused have deliberately attacked

the petitioner-complainant even though the petitioner-complainant had the benefit of an order of injunction granted by the competent court.

That apart, learned Government Advocate invited my attention to the evidence of PWs 1 to 7 which corroborates with the evidence of PWs 8

to 10 and contends that since the injuries caused on PW6 are grave in nature, question of acquitting the respondent 1 to 4 merely for technical

reason does not arise.

I have given careful consideration to the submissions of both sides.

It is relevant to refer to Ss.24, 39 of Juvenile Justice Act, 1986 and S.464, Cr.P.C. which reads as follows:

S.24 of Juvenile Justice Act, 1986:

No joint trial of juvenile and person not a juvenile - (1) notwithstanding anything contained in S.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 S.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 court taking cognizance of that offence shall direct separate trials of the juvenile and the other person.

S.39 of the Juvenile Justice Act, 1986:

Procedure in inquiries, appeals and revision proceedings - (1) save as otherwise expressly provided by this Act, a competent authority while

holding any inquiry under any of the provisions of this Act, shall follow such procedure as may be prescribed and subject thereto, shall follow, as

far as may be the procedure laid down in the code of criminal Procedure, 1973 (2 of 1974), for trials in summons case.

(2) Save as otherwise expressly provided by or under this Act, procedure to be followed in hearing appeals or revision proceedings under this Act

shall be, as far as practicable, in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974)

Section 464, Cr.P.C:

Effect of omission to frame, or absence of, or error, in charge-(1) No finding, sentence or order by a Court of competent jurisdiction shall be

deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any

misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned

thereby.

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may--

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after

the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be held upon a charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of

the facts proved, it shall quash the conviction.

A reading of S.24 read with S.39 of the Juvenile Justice Act, would make it clear that the learned Assistant Sessions Judge ought not to have

tried fifth respondent accused along with respondents-accused 1 to 4. Similarly, a reading of S.39 of Juvenile Justice Act makes it clear that the

Appellate Court namely Principal Sessions Judge ought to have followed the Code of Criminal Procedure and should have applied Section 464,

Cr.P.C. and set aside the order of the learned Assistant Sessions Judge dated 14.2.1994 and remitted the matter for Juvenile separately and other

accused separately, but not to have acquitted the respondents 1 to 4 on that ground as otherwise, it would render miscarriage of justice. The failure

of exercise of power under S.464, Crl.P.C. under the facts and circumstances of the case, renders the order of the learned Principal Sessions

Judge dated 17.4.1995 in C.A. No. 13 of 1994, illegal.

With regard to the other contentions, I find force in the arguments of the learned Government Advocate, while supporting the case of the

petitioner that merely because the respondents 1 to 5 were not convicted for the offence punishable under S.147, and 148 I.P.C., it cannot be said

that convicting the petitioners for the offences punishable under S.307 read with S.149, I.P.C. and 326 read with S.149, I.P.C. are illegal nor the

reason that remitting the matter to the trial Court nor could be stated that there is no gainful purpose in remitting the matter to me trial Court can be

justified in view of S.464, Cr.P.C. as rightly pointed out by the learned Government Advocate in as much as the provisions of Cr.P.C. are

applicable to the appellate and revisional courts in view of S.39 of the Juvenile Justice Act and in order to avoid the failure of justice, '' Appellate

Court ought to have remitted to the Juvenile Court with a direction to conduct the trial separately for the respondents 1 to 4 and for 5th

respondent-juvenile. Failure of exercise of such powers conferred under S.464, Cr.P.C. is erroneous and illegal.

For all these reasons, I am obliged to set aside the order of me learned principal sessions Judge dated 17.4.1995 in C.A. No. 13 of 1994 and

remit the matter to the trial Judge namely learned Asst. Sessions Judge, with a direction to try the respondents 1 to 4 and 5th respondent

separately, for their respective offences said to have committed by them as mentioned above.

In me result, revision is allowed with me above directions and to dispose of the matter within one year from the date of receipt of a copy of this

order.