Bombay High Court
Yash S/O Manoj Joshi vs State Of Mah. Thr. Ps Kotwali Nagpur And ... on 15 October, 2025
Author: M. S. Jawalkar
Bench: M. S. Jawalkar
2025:BHC-NAG:11253-DB
APL-1125.24-J.odt
1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLN. (APL) NO. 1125 OF 2024
APPLICANT : Yash s/o Manoj Joshi, Age 27 years, Occ:
Service, R/o Opposite Inox Punam Mall,
Qtr. No.66, EWS Colony, Hiwari Nagar,
Bagadganj, Nagpur, Pin Code-440008.
-Versus-
NON-APPLICANTS : 1. State of Maharashtra, through Police
Station Kotwali, Nagpur.
2. Khushal s/o Vasudevrao Tijare, Age 61
years, Occ: Service, R/a Police Station
Kotwali, Nagpur, Kotwali, Nagpur.
-----------------------------------------------------------------------------
Mr. S.M.Mate, Adv. for the applicant.
Mr.J. Y. Ghurde, APP for non-applicants-State.
-----------------------------------------------------------------------------
CORAM: SMT. M. S. JAWALKAR &
RAJ D. WAKODE, JJ.
CLOSED ON : 30TH SEPTEMBER, 2025
PRONOUNCED ON: 15TH OCTOBER, 2025
JUDGMENT (Per : Smt. M. S. Jawalkar, J.)
Heard.
2. Rule. Rule made returnable forthwith. Heard finally with
KHUNTE
APL-1125.24-J.odt
the consent of the learned counsel for the parties. Though non-
applicant No.2 is served, none appears.
3. By this application, the applicant prays for quashing and
setting aside the First Information Report (FIR) bearing Crime
No.3166/2016, dated 19/03/2016 and charge-sheet No.247/2016,
registered for the offences punishable under Section 43 of the
Juvenile Justice Act, 1986.
4. The applicant submits that the prosecution alleges in the
FIR that on 19/03/2016, non-applicant No.2, a Police Inspector,
acting on an anonymous tip visited the premises of one Keshav
Urkande, where the landlord had rented a room to the applicant and
others for study purposes. It is alleged that in the said room, the
applicant along with four others was found smoking hookah and
certain material, including tobacco, were seized. On this basis, FIR
bearing Crime No.3166/2016, dated 19/03/2016 was registered
under Section 43 of the Juvenile Justice Act, 1986, and Charge-sheet
No.247/2016 dated 19/04/2016 was filed.
5. The applicant contended that the FIR is false, frivolous, and
motivated, with vague and unsupported allegations. Even assuming
them to be true, no offence under Section 43 of the Juvenile Justice
Act, 1986 can be made out, since the Act stood repealed on
KHUNTE
APL-1125.24-J.odt
30/12/2000 with coming into force of the Juvenile Justice (Care and
Protection of Children) Act, 2000. The registration of an FIR in 2016
under a repealed law is ex facie illegal.
6. The applicant submitted that his date of birth is
12/08/1997 and he had attained the age of 18 years on the date of
registration of the FIR. As Juvenile Justice Legislation applies only to
children/ juveniles, invoking its provisions against the applicant is
wholly misconceived.
7. The applicant contended that a bare reading of the FIR
discloses no specific act or omission attributable to the applicant. The
allegations are sweeping and vague, clearly showing false implication
at the behest of non-applicant No.2 with mala fide intent.
Continuation of such proceedings lacks legal foundation, amounts to
abuse of process of law, and would cause gross miscarriage of justice.
8. The counsel for the applicant placed reliance upon the
following citations:
(i) Special Leave Petition (Criminal) No.5290/2024 (Rajnish
Kumar Biswakarma v. State of NCT of Delhi & anr.)
(ii) State of Punjab and others v. Bhajan Kaur and others,
(2008) 12 SCC 112.
(iii) Vishwanath Tukaram Ghorpade v. State of Maharashtra,
2016 SCC OnLine Bom 5626.
KHUNTE
APL-1125.24-J.odt
(iv) CRM-M-35747-2024 (Jasmeet Kaur and another v. State of
Punjab and another).
(v) Rashmi Sarang @ Smt.Rashmi v. Police Inspector by
Thalaghattapura Police Station by State Public Prosecutor,
High Court of Karnataka and another, 2025 SCC OnLine Kar
11283.
9. The non-applicant No.1 contended that the applicant had
rented a room and turned it into a hookah parlour for personal gain,
where minor students were provided intoxicating substances and
encouraged to supply them outside. Acting on an anonymous tip, non-
applicant No.2 seized the incriminating material and lodged the
complaint, leading to FIR bearing Crime No.3166/2016.
10. The non-applicant No.1 submitted that investigation was
duly conducted, recorded the statements of witnesses and charge-
sheet No.247/2016 dated 19/04/2016 filed before the Competent
Court. The allegations disclosed a clear prima facie case, and the plea
of false implication is a matter of defence to be considered at trial.
Hence, the prayer for quashing is not maintainable.
11. Furthermore, it is submitted by non-applicant No.1 that the
investigating officer recorded statements of the complainant, police
staff, and landlord, all of whom confirmed the applicant's involvement
in the crime. Spot and seizure panchnamas also show recovery of
hookah pots, tobacco substances, cash, and other articles.
KHUNTE
APL-1125.24-J.odt
12. It is also contended by the non-applicants that the birth
certificates of other co-accused proved that they were minors. Though
the applicant claims to be above 18 years, he has not produced any
valid birth certificate, and there his defence is to be examined at the
trial.
13. It is also submitted by non-applicants that the chemical
analysis report confirmed the presence of nicotine in the seized
substance and the offence is also covered under the provisions of
Cigarettes and Other Tobacco Products (Prohibition of Advertisement
and Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 2003, as hookah tobacco falls under its Schedule.
The non-applicants submitted that there is a strong prima facie case
made out against the applicant and the application is liable to be
rejected.
14. The learned APP in support of his contentions, placed
reliance on T. Barai v. Henry Ah Hoe and another, (1983) 1 SCC 177.
15. Heard the learned counsel for the parties and considered
the citations relied on by both the parties.
16. The main contention of the applicant is that the FIR was
registered under the provisions of old Juvenile Justice Act, 1986,
KHUNTE
APL-1125.24-J.odt
wherein there is no reference of 'tobacco' or 'tobacco product'. For
the sake of convenience, section 43 of the Juvenile Justice Act, 1986
is reproduced as under:
"43. Penalty for giving intoxicating liquor or narcotic
drug or psychotropic substance to a juvenile.- Whoever
gives, or causes to be given, to any juvenile any
intoxicating intoxicating liquor in a public place or any
narcotic drug or psychotropic substance except upon the
order of a duly qualified medical practitioner or in case
of sickness shall be punishable with imprisonment for a
term which may extend to three years and shall also be
liable to fine."
17. In this connection, it is pertinent to note that the applicant
was directed to place on record the charge framed by the learned
Magistrate. Along with pursis dated 25/09/2025, he filed certified
copy of application for discharging the accused person dated
21/05/2019 along with order passed thereon dated 13/12/2019. He
also produced on record a copy of charge framed by Judicial
Magistrate First Class, Court No.8, Nagpur and also plea of the
accused recorded thereunder on 13/12/2019. The Court has rightly
framed charge under section 77 of the Juvenile Justice (Care and
Protection of Children) Act, 2015. For the sake of convenience,
section 77 of the Act of 2015 is reproduced as under:
"77. Penalty for giving intoxicating liquor or narcotic
drug or psychotropic substance to a child.- Whoever
KHUNTE
APL-1125.24-J.odt
gives, or causes to be given, to any child any substance,
except on the order of a duly qualified medical
practitioner, shall intoxicating liquor or any narcotic
drug or tobacco products or psychotropic be punishable
with rigorous imprisonment for a term which may
extend to seven years and shall also be liable to a fine
which may extend up to one lakh rupees.
This clause provides that whoever gives, or
causes to be given, to any child any intoxicating liquor
or any narcotic drug or tobacco products or psychotropic
substance, except on the order of a duly qualified
medical practitioner, shall be punishable with rigorous
imprisonment for a term which may extend to seven
years and shall also be liable to a fine which may extend
up to one lakh rupees or both. (Notes on Clauses)."
The section shows that not only liquor, narcotic drugs, but
also tobacco products are included in the list of prohibitory material
to be given to any child.
18. The learned counsel for the applicant relied on judgment in
Special Leave Petition (Criminal) No.5290/2024 (supra) in support of
his contention that FIR can be quashed at any stage and only because
it has not been challenged at the inception, on that ground the
application cannot be rejected. There is no dispute over the
proposition laid down in this special leave petition. However, whether
there is any material to quash the FIR is required to be seen. The
learned counsel for the applicant also placed reliance on State of
Punjab and others v. Bhajan Kaur and others (supra). However, the
KHUNTE
APL-1125.24-J.odt
reliance is misplaced. The issue before the Hon'ble Apex Court was
whether a Statute is presumed to be prospective unless held to be
retrospective either expressly or by necessary implication. The Hon'ble
Apex Court held that a substantive law is presumed to be prospective.
It is one of the facets of the rule of law. Hence, there was no question
of any pending litigation in connection with the old Act. In fact, the
charge-sheet filed by the Police Authorities refers to tobacco and
tobacco products being given to the minors through hookah. As such,
what is the offence committed is in fact covered by section 77 of the
Juvenile Justice (Care and Protection of Children) Act, 2015 of which
due care has been taken by the learned Judicial Magistrate First Class.
The learned counsel for the applicant placed reliance on Vishwanath
Tukaram Ghorpade v. State of Maharashtra (supra). However, this
citation is also of no avail, as in the said citation offence under
sections 39 and 44 of the Electricity Act, 1910 was registered on
30/07/2003. After repeal of the said Act of Electricity Act, 1910 was
held to be illegal, in view of the provisions of section 151 of the
Electricity Act, 2003. In the present matter, the learned Magistrate
duly considered the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2015 while framing the charges. The
application for discharge is also rejected. It is a mistake on the part of
Police Authorities while applying the section. Though there was a
KHUNTE
APL-1125.24-J.odt
mention in the FIR that some products having tobacco and other
substance were given to the children, which are prohibited as per
section 77 of the Juvenile Justice (Care and Protection of Children)
Act, 2015. However, it is an offence registered under section 43 of
the Act of 1986, wherein there is no reference of tobacco. Therefore,
the Magistrate is right in framing charge under section 77 of the
Juvenile Justice (Care and Protection of Children) Act, 2015 which is
applicable, as offence is alleged to have been committed on
19/03/2016.
19. The learned counsel for the applicant also relied on the
judgment in Jasmeet Kaur and another v. State of Punjab and another
(supra). However, the facts involved are different. In the said matter,
Punjab and Haryana High Court considered the effect of repealing of
Statute, which means to obliterate it has completely from the records
of Parliament as if it had never been passed; and it must be
considered as a law that never existed except for the purpose of those
actions which commenced, prosecuted and concluded whilst it was an
existing law. It is held that the FIR which was registered on
17/07/2024 under section 406 of IPC, specifically when BNSS, 2023
was very much in existence. It would have been a different case that
if FIR was lodged prior to 2023, it would have treated as legal and
KHUNTE
APL-1125.24-J.odt
valid. But as soon as new Act came into force, the FIR ought to have
registered as per the provisions of BNSS 2023.
20. The learned counsel for the applicant also placed reliance
on Rashmi Sarang @ Smt.Rashmi v. Police Inspector by
Thalaghattapura Police Station by State Public Prosecutor, High Court
of Karnataka and another (supra), wherein the Karnataka High Court
dealing with the issue of registration of FIR under sections 41 and 42
of the Juvenile Justice Act, 1986, which was repealed by the Act of
2000 and subsequently by the Act of 2015. The Additional Chief
Judicial Magistrate, Bengaluru framed charges under sections 41 and
42 of the Act of 1986 as well as under sections 74(1) and 85 of the
Juvenile Justice (Care and Protection of Children) Act, 2015. The
Karnataka High Court held that the registration of FIR was under
repealed Act and sections 74(1) and 85 of the Juvenile Justice (Care
and Protection of Children) Act, 2015 are not applicable, proceedings
against the petitioner is an abuse of process of law. Therefore, the
entire proceedings were quashed and set aside.
21. The learned APP relied on T. Barai v. Henry Ah Hoe and
another (supra) to explain the effect of repeal. The Hon'ble Apex
Court held in para-18 as under:
"18. Whenever there is a repeal of an enactment, the
KHUNTE
APL-1125.24-J.odt
consequences laid down in Section 6 of the General
Clauses Act though it has been specifically mentioned in
the repealing Act or not, will follow, unless, as the
section itself says, a different intention appears. In State
of Punjab v. Mohar Singh, this Court has elaborately
dealt with the effect of repeal. In the case of a simple
repeal, there is scarcely any room for expression of a
contrary opinion. But when the repeal is followed by
fresh legislation on the same subject, the court would
undoubtedly have to look to the provisions of the new
Act, but only for the purpose of determining whether
they indicate a different intention. "The line of inquiry
would be, not whether the new Act expressly keeps alive
old rights and liabilities", in the words of Mukherjea. J.,
"but whether it manifests an intention to destroy them."
The Court held that it cannot subscribe to the broad
proposition that Section 6 of the General Clauses Act is
ruled out when there is repeal of an enactment followed
by fresh legislation. Section 6 would be applicable in
such cases also unless the new legislation manifests an
intention incompatible with or contrary to the provisions
of the section. Such incompatibility would have to be
ascertained from a consideration of all the relevant
provisions of the new Act and the mere absence of a
saving clause is not by itself material. The Court
therefore held that the provisions of Section 6 of the
General Clauses Act will apply to a case of repeal even if
there is simultaneous enactment unless a contrary
intention can be gathered from the new enactment. Of
course, the consequences laid down in Section 6 of the
General Clauses Act will apply. only when a statute or
regulation having the force of a statute is actually
repealed. It has no application when a statute which is of
a temporary nature automatically expires by efflux of
time. The principles laid down by the Court in Mohar
Singh case, have consistently been followed in
subsequent cases. The old doctrine of extinguishing or
KHUNTE
APL-1125.24-J.odt
effacing the repealed law for all purposes and intents
except for the acts past and closed has now given way to
the principles enunciated by the Court in Mohar Singh
case."
22. In our considered opinion, the Court has ample power
under section 216 of the Code of Criminal Procedure/section 239 of
BNSS to alter or add to any charge at any time before judgment is
pronounced. Only condition which is mentioned in section 216 of the
Code of Criminal Procedure/section 239 of BNSS is that every such
alteration or addition shall be read and explained to the accused. On
perusal of the charge framed by the learned Judicial Magistrate First
Class, Court No.8, Nagpur, one can see that the contents in the FIR
are taken into consideration and the existing law is made applicable
to the offence. When the offence was committed, the Juvenile Justice
(Care and Protection of Children) Act, 2015 was in existence. Merely
on this technical ground the cahrge-sheet or criminal proceedings
cannot be quashed or set aside. In view of this matter, we do not see
any reason to interfere in the trial already commenced. As such, the
application stands dismissed.
23. Rule stands discharged.
(RAJ D. WAKODE, J) (SMT. M. S. JAWALKAR, J)
Signed by: Mr. G.S. Khunte KHUNTE
Designation: PS To Honourable Judge
Date: 18/10/2025 10:37:37
