The Allahabad High Court while allowing the application said that the magistrate has no power to retain the file after declaring the accused as juvenile.
A Single Bench of Justice Shekhar Kumar Yadav passed this order while hearing an application filed by the Juvenile.
The application under Section 482 Cr.P.C has been filed by applicant to quash the impugned order dated 03.02.2023 passed by the ACJM, Khurja, District Bulandshahar in connection with Criminal Case under Sections 419, 420, 467, 468, 471 and 120-B IPC, Police Station Khurja Nagar, District Bulandshahar and for a direction to the Magistrate to comply with the order dated 18.05.2022 passed by Juvenile Justice Board, Bulandshshar so that trial of the aforesaid case be transferred under Section 18 (3) of Juvenile Justice (Care and Protection of Children) Act, 2015 before the Children’s Court/POCSO Court, Bulandshahar having its jurisdiction.
The facts of the case are that on 30.06.2016, the opposite party no 2 lodged the FIR against unknown persons alleging that on false promise of obtaining NOC from Pollution Board, U.P to run his cold storage, the informant/opposite party no 2 was duped of Rs 40 lakh by unknown person, who asked him to make deposit the said amount into some bank account, where after the OSD of Hon’ble Chief Minister was promised to help him.
It is further alleged that the informant/opposite party no 2 issued three cheques, i.e, cheque no.408173 dated 22.06.2016 amounting to Rs 20 lakh, cheque no.408174 dated 22.06.2016 amounting to Rs 10 lakh and cheque dated 24.06.2016 amounting to Rs 10 lakh. Total Rs 40 lakh has been deposited by the informant/opposite party no 2 through R.T.G.S in the Account State Bank of India, C.O.G Bazar, Agra.
It is further alleged that when the informant/opposite party no 2 has inquired about the said account, it was found that the said account is opened in the name of Narendra Singh s/o Anil Singh, House New Abadi, Taj Nagri, Tajganj, Agra.
Since then the informant/opposite party no 2 has contacted several times but the accused person has not responded. Thereafter, the informant/opposite party no 2 has approached the Samajwadi Karyalaya, Lucknow and met one Ashish Yadav, who has stated that he never called and some one has duped his money naming his name.
After lodging the FIR, the aforesaid matter was investigated and during investigation it was found that in the alleged commission of offence total eight persons were involved. Co-accused Rahees and other two co-accused persons including the applicant were arrested on 24.07.2016 and from their joint possession Rs 5.5 Lacs were recovered.
After the conclusion of the investigation, the investigating officer has submitted a charge sheet on 10.09.2016 against all eight accused persons including the applicant. Based upon the charge sheet, the Additional Chief Judicial Magistrate vide order dated 16.09.2016 has taken cognizance and drawn criminal proceedings against all the accused persons. The applicant had moved regular bail claiming juvenility, which was allowed vide order dated 19.10.2016 till the Board made functional and pending decision regarding determination of age of the applicant. Ultimately, the applicant was declared juvenile vide order dated 18.05.2022 passed by Juvenile Justice Board, Bulandshahar.
Counsel for the applicant has submitted that the applicant was declared juvenile vide order dated 18.05.2022 and at the time of commission of alleged offence, the applicant was 16 years 9 months and 7 days and meaning thereby the applicant was above 16 years but less than 18 years.
He has further submitted that after declaring juvenile, the guardian of applicant had moved an application dated 26.08.2022 before the Additional Chief Judicial Magistrate Khurja, Bulandshahar praying therein to separate the file of trial proceedings of the case and send its file before the court having jurisdiction to try the case against the applicant but the same was rejected vide impugned order dated 03.02.2023.
He has further submitted that the order impugned is illegal and continuation of trial proceedings of the instant case against the applicant/delinquent juvenile any further will be in violation of clear mandate of law as given under Section 18 (3) of the Act, 2015.
Per contra, the Additional Government Advocate has vehemently opposed the submissions made by the counsel for the applicant.
“As per terms of Section 18 (3) of the Act, 2015, the Magistrate has no power to retain the file after declaring the applicant-accused as juvenile and the trial of any accused/delinquent juvenile, who is assessed to be tried as an adult, can only be held before the Children’s Court/ POCSO Court in terms of Section 18 (3) of the Act, 2015.
But in this case, the accused-applicant was 16 years 9 months and 7 days at the time of commission of alleged offence, hence, the accused-applicant was declared juvenile vide order dated 18.05.2022 passed by Juvenile Justice Board. After declaring the accused-applicant as juvenile, the Principal Magistrate has rightly requested the Additional Chief Judicial Magistrate to pass appropriate order for sending the matter to the Juvenile Justice Board/Children’s court, but the Additional Chief Judicial Magistrate without giving any heed, rejected the same observing that as the file of the instant case has been transferred to his court, therefore, he will continue to hold the trial proceeding.
Perusal of letter of Principal Magistrate dated 27.06.2022 clearly states that after declaring the accused-applicant as juvenile, he has requested the Additional Chief Judicial Magistrate to pass appropriate order for sending the matter to the Juvenile Justice Board and the Magistrate ought to have complied with requisition request dated 27.06.2022 wherein it was asked to transfer the file of the case to the Juvenile Justice Board so that Board may transfer the said file to the Children’s Court/POCSO Court having jurisdiction to try such case against the accused-applicant in terms of Section 18 (3) of the Act, 2015, but the Additional Chief Judicial Magistrate, instead of sending the file to the Juvenile Justice Board, has passed the order impugned”, the Court observed while allowing the application.
“The order dated 03.02.2023 passed by the ACJM, Khurja, District Bulandshahar is hereby set aside.
Consequently, the case pending before the Magistrate stands transferred to the Children’s Court in view of Section 18 (3) of Juvenile Justice (Care & Protection of Children) Act, 2015. The Magistrate concerned is directed to send the file of the case to the Juvenile Justice Board/Children’s Court having jurisdiction to try the case against the applicant in terms of Section 18 (3) of the Act, 2015″, the order reads.