Kerala High Court
Ashish vs Benny on 16 February, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
CRL.MC NO. 8525 OF 2016
CRIME NO.121/2012 OF Kuruppampady Police Station, CC
153/2016 OF JUVENILE COURT, ERNAKULAM
PETITIONER/ACCUSED:
ASHISH, AGED 19 YEARS, S/O SUNNY,
VAZHAKALA HOUSE, MANJAKUZHIKARA, RAJAKUMARI PO,
RAJAKUMARI, IDUKKI DISTRICT
BY ADVS.SRUTHY N BHAT
RESPONDENT/COMPLAINANT & STATE:
1 BENNY, S/O VARGHESE, KARIPRA VEEDU, PRALAYAKAD
KARA, VENGOOR WEST VILLAGE, ERNAKULAM-683546
2 STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031
BY ADVS.SRI.PRAMOJ ABRAHAM
SRI.VINUCHAND
PP SMT. MAYA M.N.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 16.02.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.M.C.No.8525/2016
-:2:-
ORDER
Dated this the 16th day of February, 2024
This Crl.M.C has been filed to quash all further proceedings
in C.C.No.153/2016 on the file of the Juvenile Justice Board,
Ernakulam.
2. The petitioner herein is a Juvenile in Conflict with Law
(JCL) in the above case. The offences alleged against him are
punishable under Sections 323, 326 and 506(ii) read with 34 of
the IPC.
3. Originally, the Kuruppampady Police registered Crime
No.121/2012 against the petitioner and two others under the
above Sections. The petitioner herein was shown as the accused
No.2. The prosecution case in short is that the petitioner and the
remaining accused on 28/1/2012 at around 7.00 p.m in
pursuance of the existing civil dispute, assaulted the 1 st
respondent and thereby committed the above mentioned
offences.
4. The police, after investigation, filed final report
referring the case as false. The respondent No.1/defacto
complainant filed a protest complaint before the Judicial First
Class Magistrate-I, Perumbavoor. The learned Magistrate took
cognizance on the protest complaint for the offences punishable
under Sections 323, 326 and 506(ii) read with 34 of the IPC
against all the accused including the petitioner and numbered the
case as C.C.No.24/2014. Thereafter the case was transferred to
the Judicial First Class Magistrate-I, Kuruppampady. While the
case was pending there, the learned Magistrate entertained
doubt as to the age of the petitioner and after due enquiry found
that the petitioner was a juvenile on the date of commission of
the offence. Therefore, the learned Magistrate split up the case
against the petitioner and forwarded the records to the Chief
Judicial Magistrate, Ernakulam who in turn forwarded the case of
the petitioner to the Juvenile Justice Board, Ernakulam (for short
'the JJ Board'). The JJ Board on receipt of the case records
issued summons to the petitioner to appear before it and answer
charges under Sections 323, 326 and 506(ii) read with 34 of the
IPC. It is at that juncture, the petitioner approached this Court
to quash the entire proceedings.
5. I have heard Smt. Sruthy N. Bhatt, the learned
counsel for the petitioner and Smt. M.N. Maya, the learned Public
Prosecutor.
6. The learned counsel for the petitioner submitted that
the JJ Board, on receipt of the case records straight away issued
summons to the petitioner without independently applying its
mind to the final report and the protest complaint. The learned
counsel further submitted that, the petitioner being a juvenile,
the entire proceedings initiated from the inception is vitiated
inasmuch as it is not in accordance with the provisions of the
Juvenile Justice (Care & Protection of Children) Act, 2000 (JJ Act
for short) and Rules. On the other hand, the learned Public
Prosecutor submitted that the learned Magistrate has rightly
forwarded the complaint to the JJ Board since the petitioner was
found to be a minor and the JJ Board has followed the procedural
statutory requirements.
7. As stated already, the police, after investigation, filed
a final report referring the case as false. Annexure B is the refer
report. The respondent No.1/defacto complainant, aggrieved by
Annexure B filed a protest complaint. Annexure C is the protest
complaint. The Judicial First Class Magistrate-I, Perumbavoor
took cognizance on the protest complaint against the petitioner
as well under Sections 323, 326 and 506(ii) read with 34 of the
IPC. Later on, it was found that the petitioner was a juvenile at
the time of commission of the offence and the case against him
was transferred to the JJ Board, Ernakulam for further action.
The JJ Board, Ernakulam after conducting an enquiry, straight
away issued summons to the petitioner.
8. Sub-section (1) Section 7 of the JJ Act, 2000 says that
"When any Magistrate not empowered to exercise the powers of a
Board under this Act is of the opinion that a person brought before
him under any of the provisions of this Act (other than for the purpose
of giving evidence), is a juvenile or the child, he shall without any
delay record such opinion and forward the juvenile or the child and the
record of the proceeding to the competent authority having jurisdiction
over the proceeding." Sub-section (2) of Section 7 of the JJ Act,
2000 says that "(2) The competent authority to which the
proceeding is forwarded under sub-section (1) shall hold the inquiry as
if the juvenile or the child had originally been brought before it."
Section 54 of the JJ Act, 2000 says that,
"(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 cases.
(2) Save as otherwise expressly provided by or under this Act,
the 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)."
9. It is settled that, when a protest complaint is filed
against a refer report, the Magistrate has to peruse both the
refer report as well as the protest complaint and shall take an
independent decision as to whether the protest complaint has to
be taken on file. In this case, after the receipt of the case
records by the JJ Board, the JJ Board did not independently
peruse the refer report or protest complaint and apply its mind to
find out whether there are sufficient materials to proceed against
the JCL. The JJ Board can very well drop the proceedings if it
finds that there are no materials for proceeding against the JCL.
Instead, the JJ Board mechanically issued summons to the
petitioner, probably for the reason that the Judicial First Class
Magistrate-I, Perumbavoor had already taken cognizance of the
protest complaint against the petitioner as well. Inasmuch as the
petitioner was a juvenile, the entire proceedings taken by the
learned Magistrate including taking cognizance on the protest
complaint is not binding on him.
10. The JJ Act and the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (for short, "the JJ Rules")
being benevolent legislation and the intent of the enactment
being reformative and ameliorative in its content and enacted
with the objective of safeguarding the interest of the juveniles,
has extensively stated the procedural safeguards required to be
followed in the proceedings before the board in addition to the
application of the Criminal Procedure Code. Rule 3 (I) talks about
the principle of presumption of innocence and Rule 3(I)(d)(ii)
states about the procedural protection of innocence, wherein it is
stated that "All procedural safeguards that are guaranteed by the
Constitution and other statutes to the adults and that go in to
strengthen the juvenile's or child's right to presumption of
innocence shall be guaranteed to juveniles or the children or
juveniles in conflict with law". The JJ Board took cognizance
against the petitioner and issued summons to him without
following the procedures contemplated by the Cr.P.C and JJ Act,
2000 and JJ Rules. That apart, the learned counsel for the
petitioner made available to me the judgment of the Judicial First
Class Magistrate-III, Perumbavoor against the accused Nos. 1
and 3. They were already acquitted after a full-fledged trial. It
is submitted that there is no appeal against the said judgment.
In these circumstances, no purpose will be served in proceeding
further against the petitioner.
Accordingly, all further proceedings against the petitioner in
C.C.No.153/2016 on the file of the Juvenile Justice Board,
Ernakulam stands hereby quashed. The Crl.M.C is allowed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
PETITIONER ANNEXURES
ANNEXURE A TRUE COPY OF THE FIR IN CR.NO.121/12 OF
KURUPAMPADI POLICE STATION
ANNEXURE B TRUE COPY OF THE FINAL REPORT (REFER
REPORT) IN CR.NO.121/12 OF KURUPPAMPADI
POLICE STATION, FILED BEFORE HTE COURT
OF THE JFCM-I, PERUMBAVOOR
ANNEXURE C TRUE COPY FO THE PROTEST COMPLAINT FILED
BY THE 1ST RESPONDENT BEFORE THE COURT
OF THE JFCM-I, PERUMBAVOOR
ANNEXURE D TRUE COPY OF THE SUMMONS ISSUED TO THE
PETITIONER FROM THE JUVENILE JUSTICE
BOARD, ERNAKULAM DATED 28.09.2016
ANNEXURE E TRUE COPY OF THE PROCEEDINGS IN CC
153/2016 ON THE FILE OF THE JUVENILE
JUSTICE BOARD,ERNAKULAM.
