Gandhi Singh vs State of Punjab

T.H.B. Chalapathi, J.

This application is filed to quash the order of remand passed by the learned Additional Sessions Judge, Bathinda, dated Sept. 27, 1997.

The accusedpetitioners were tried for the offences under Sections 326 and 324 read with Section 34 I.P.C. They were convicted and sentenced to undergo rigorous imprisonment for one year, six months, eight months and four months on different counts. Against their conviction and sentences, the accused petitioners preferred an appeal to the learned Additional Sessions Judge, Bathinda, who by his order dated 27.9.1997, remanded the case to the trial Court on the question of awarding sentence to Gandhi Singh, 1st petitioner herein, on the ground that he was juvenile at the time of the commission of the offence. After remand the prosecution contended before the learned Trial Magistrate that since the matter was remitted only on the question of awarding sentence to Gandhi Singh, there cannot be any fresh trial, whereas the accused contended that the conviction and sentences of all the three accused have been set aside by the Appellate Court and remanded the matter for a fresh decision. Accordingly, the trial Court fixed the case for arguments. Against the said order, the accused preferred a revision petition in Criminal Revision No. 12 of 1997 to the Additional Sessions Judge, Bathinda. The same was dismissed by the learned Additional Sessions Judge on the ground that the order passed by the Trial Magistrate is only an interlocutory order and no revision petition is maintainable against the same and the learned Additional Sessions Judge, Bathinda directed the accusedpetitioners to appear before the trial Court. Hence this petition under Section 482 Cr.P.C.

The accusedpetitioners were convicted in criminal challan No. 16 of 44 1985/R.T. No. 127 of 3051991, FIR No. 4 of 311985, P.S. Raman, by the Judicial Magistrate 1st Class, Bathinda, by his judgment dated 2811993 for the offences under Section 326 and 324 read with Section 34 I.P.C. and they were convicted for various offences and sentenced to undergo rigorous imprisonment on different counts. Against the said conviction and sentences, the accusedpetitioners preferred Criminal Appeal No. 4 of 2221993 (RT No. 49 of 391996. The leaned Additional Sessions Judge, Bathinda in his judgment dated 2791997 observed as follows :

"From the combined reading of Section 26 of the Juvenile Justice Act and Section 461 of the Criminal Procedure Code, I feel no hesitation in observing that Gandhi Singh, accusedappellant, who happened to be aged 13/14 years at the time when the charge was framed in this case should have not been convicted by the trial Magistrate in this case, who at the relevant time was holding the powers of Judicial Magistrate 1st Class. I, as such, am of the opinion that the judgment of the trial Court cannot stand due to irregularity above said. I, accordingly, remand the case to the successor of the trial Court for fresh decision. The accusedappellants, through their Counsel and the complainant through his counsel, are directed to appear in the lower Court on 10101997."

A reading of the judgment of the Appellate Court in Criminal Appeal No. 4 of 2231993 clearly shows that the learned Additional Sessions, Bathinda did not consider the appeal on merits. He remitted the case only on the ground that Gandhi Singh, the 1st petitioner herein and accused No. 3 happened to be aged 13/14 years at the time when the charge was framed and should not have been convicted by the trial Magistrate. As such, he was of the opinion that the judgment of the trial Court could not stand due to the said irregularity. He, accordingly, remanded the case to the successor of the trial Court for fresh decision and directed the accusedappellant to appear in the trial Court. A further reading of his judgment clearly shows that both the conviction and sentences imposed on all the three accused were set aside by the Appellate Court. The order of remand, in my view, is clearly wrong. Out of all the three accused only, accused No. 3, who is the 1st petitioner, was juvenile at the time of commission of the offence. Therefore, the learned Additional Sessions Judge ought to have allowed his appeal on the ground that the trial Magistrate had no power to try him in view of the provisions of Juvenile Justice Act, but he should have considered the appeal of Labh Singh and Bhola Singh accused on merits. This course, the learned Additional Sessions Judge had not adopted. Instead he remanded the case in its entirety. When the judgment of the trial Court was set aside and the matter was remanded for fresh decision, it amounts to remanding the case for fresh trial against all the three accused. The judgment of the Appellate Court is clearly erroneous since the appeal filed by the Labh Singh and Bhola Singh, petitioners 2 and 3 herein, has to be decided only on its own merits because the trial Court had the jurisdiction to decide the criminal case against them as they were not juvenile at the time of the commission of the offence. The appellate Court could have only set aside the conviction and sentence imposed by the learned trial Magistrate only in respect of Gandhi Singh, who happened to be a minor at the time of commission of the offence. Therefore, I am of the opinion that the learned Additional Sessions Judge went wrong in remanding the entire matter to the trial Court for fresh decision. In exercise of my inherent jurisdiction under Section 482 Cr.P.C., I set aside the order of the learned Additional Sessions Judge, Bathinda dated 2791997, but the matter does not end there.

Admittedly, Gandhi Singh, the 3rd accused was a minor at the time of the commission of the offence. He could not have been tried in view of the provisions of the Juvenile Justice Act. Therefore, the conviction and sentence imposed by the trial Court on Gandhi Singh is liable to be set aside. Then the next question that arises is whether this is a fit case to be referred to the Juvenile Court. The offence is said to have been committed in the year 1985. At that time, Gandhi Singh was shown as aged about 13 years. Now 14 years have passed since the date of commission of the offence.

Gandhi Singh was sentenced to undergo R.I. for six months for the offence under Section 326/34 I.P.C., 8 months under section 324 I.P.C. and four months for the offence under Section 324/34 I.P.C. In view of the lapse of time and in view of the age of Gandhi Singh, accused, at the time of commission of the offence, I am of the opinion that no useful purpose will be served to direct the Juvenile Court to try him for the offence that took place more that 14 years back. I, therefore, set aside the conviction and sentence imposed by the learned trial Judge on Gandhi Singh by his judgment dated 2811993.

Coming to the case of Labh Singh and Bhola Singh, they were not juvenile at the time of the commission of the offence. While dealing with their appeal, admittedly, the learned Additional Sessions Judge, Bathinda, had not gone into the correctness or otherwise of the conviction and sentences imposed by the trial Court on them. The appeal filed by them should have been decided by the Appellate Court on merits on the basis of the evidence already adduced during the trial. The order of the learned Additional Sessions Judge dated 2791997 remanding the matter for a decision afresh by the trial Court in regard to Labh Singh and Bhola Singh is clearly erroneous and is liable to be set aside. The appeal filed by them has to be dealt with by the learned Additional Sessions Judge in accordance with law.

I, therefore, set aside the judgment of the learned Additional Sessions Judge dated 2791997, order of learned Chief Judicial Magistrate, Bathinda dated 20111997 and the order of the learned Additional Sessions Judge, Bathinda passed in Criminal Revision No. 12 of 1997 dated 2171998. In my view, the proper course in the circumstances of the case, is to direct the learned Additional Sessions Judge, Bathinda to decide the appeal afresh filed by Labh Singh and Bhola Singh, accused, in Cr. Appeal No. 4 to 1993.

I, accordingly, allow the Misc. Application, set aside the conviction and sentences imposed by the trial Court qua the 1st petitioner Gandhi Singh (accused No. 3) and direct the learned Additional Sessions Judge, Bathinda to dispose of the appeal filed by Labh Singh and Bhola Singh in Criminal Appeal No. 4 of 22.2.1993 on merits after considering the evidence already recorded during the trial against them. Since the occurrence took place in 1985 and the matter is pending nearly 15 years, I direct the learned Additional Sessions Judge, Bathinda to dispose of the said appeal within three months from the date to receipt of this order. He shall take necessary steps to get the record of the trial Court forthwith and decide the said appeal within the aforesaid period.