Sawal Singh Vs. State and ors. - Court Judgment

Excerpt:

.....appeal dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - he submitted..........way of a writ petition late in july, 2000 offered by mr. joshi that he was poor man is also unacceptable. if a poor man can afford to file petition and appeal in 2000 before this court, then he could have certainly file petition in 1997 itself. in our considered opinion, this is nothing but lame excuses for filing the petition late.(7). before parting, we must make it clear that this court has discretionary jurisdiction under article 226 of the constitution and when on peculiar facts of the case the learned single judge has refused to exercise discretion in favour of the appellant-petitioner on the ground of gross delay and latches of 16 years in challenging the termination order than certainly this court would not interfere with such discretionary orders in special appeal.(8). in view of the above discussion, this appeal fails and is hereby dismissed.

Judgment:

ORDER

Shethna, J.

(1). The appellant-original petitioner has challenged in the special appeal the judgment and order dated 10.10.2000 passed by the learned Single Judge of this Court dismissing the writ petition No. 3147/2000 filed by him.

(2) The appellant was appointed on the post of constable by a common order of appointment at Annex. 1. His services were straight away terminated by the impugnedorder dated 15.10.1984 passed by the Superintendent of Police, Ajmer on the ground that by producing forged caste certificate, he obtained service in the police department for which criminal case No. 90/84 was registered against him with the Civil Lines Police Station, Ajmer for the offences punishable u/S. 420, 467, 466 and 471 IPC. The said case was tried as criminal case No. 1672/86 by the learned Civil Judge and Judicial Magistrate, Ajmer Court No. 3 who, by his judgment and order dated 20.1.1997, acquitted the appellant- accused by giving him benefit of doubt.

(3). After the order of acquittal dated 20.1.1997 passed by the learned Magistrate, the appellant-petitioner sent notice to the respondent to take him on duty but the certified copy of the judgment was not sent, therefore, he was told that no action can be taken in the matter. Thereupon, the photostat copy of the judgment was sent to the Superintendent of Police, Ajmer with a request to reinstate him in the service as Constable. However, no action was taken in the matter, therefore, the appellant-petitioner filed a writ petition before this Court on 21,7.2000 i.e. after a period of more than three and half years of the order of acquittal and after a period of more than 16 years from the dale of his termination without offering any explanation for such a gross delay in filing the petition late.

(4), The learned Single Judge without going into the merits of the case dismissed the writ petition only on the ground of delay of 16 yrs. in challenging the impugned order of termination which was passed in 1984. This order is challenged in this special appeal.

(5). Learned counsel Shri Ranjeet Joshi for the appellant submitted that because of the pendency of the criminal case, the appellant-petitioner did not challenge the impugned order of termination passed in 1984 early. He submitted that as soon as he was acquitted by the competent criminal court in January, 1997, before approaching this Court, he approached the authority with a request to take him back in service but no heed was given, therefore, he had filed this petition in 2000. He, therefor, submits that on the ground of delay, the petition should not have been dismissed by the learned Single Judge. He submitted that the impugned order of termination is ex facie bad and illegal, therefore, on a technical ground like delay the learned Single Judge should not have dismissed his writ petition. He submitted that the back-wages could have been denied on the ground of delay but reinstatement could not have been denied when the impugned order was ex facie bad and illegal.

(6). We are in complete agreement with the view taken by the learned Single Judge for dismissing the writ petition on the ground of gross delay and latches of as many as 16 years. The learned Single Judge was fully justified in observing the mere pendency of a criminal case would not be a ground for the petitioner-appellant not to challenge his termination order if according to him it was ex facie bad and illegal. It is true that the appellant-petitioner came to be acquitted by the competent criminal court on 20.1.1997 but that was an order of acquittal by giving benefit of doubt to the accused and it was not a clear cut acquittal. That apart if the respondents had not given any heed after the order of acquittal served upon them in 1997 then the appellant-petitioner should not have waited for three more years. The explanation for approaching this Court by way of a writ petition late in July, 2000 offered by Mr. Joshi that he was poor man is also unacceptable. If a poor man can afford to file petition and appeal in 2000 before this court, then he could have certainly file petition in 1997 itself. In our considered opinion, this is nothing but lame excuses for filing the petition late.

(7). Before parting, we must make it clear that this Court has discretionary jurisdiction under Article 226 of the Constitution and when on peculiar facts of the case the learned Single Judge has refused to exercise discretion in favour of the appellant-petitioner on the ground of gross delay and latches of 16 years in challenging the termination order than certainly this Court would not interfere with such discretionary orders in special appeal.

(8). In view of the above discussion, this appeal fails and is hereby dismissed.