Bhagchand Vs. State of Rajasthan and ors. - Court Judgment |
| Criminal |
| Rajasthan High Court |
| Feb-16-1979 |
| S.B. Cr. Misc. Application No. 252/78 |
| K.S. Sidhu, J. |
| 1979WLN(UC)129 |
| Bhagchand |
| State of Rajasthan and ors. |
.....by him;application allowed - 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. .....order. mr. garg, the learned public prosecutor, agrees that the learned additional sessions judge has passed an illegal order which cannot be justifiable defended by him. mr. girg has however, argued that cot withstanding the fact that this is an illegal order, this is not a fit case calling for interference by this court in the exercise of its extraordinary power tinder section 482 crpc.3 after giving the matter my careful consideration. i am of opinion that since the order passed by the learned additional sessions judge is patently illegal, it can be legitimately presumed that the illegality, if allowed to stand, would frustrate the ends of justice. i would accordingly allow this application, set aside the order of the learned additional sessions judge to the extent indicated above, and remove the attachment of the land in-dispute as ordered by him. i may however, at once make it clear that the learned magistrate who is at present seized of the case will be free to decide, in the event he makes an order under section 145(1) crpc, whether or not to make the order of attachment under section-146 crpc
K.S. Sidhu, J.
1. This application under Section 482 CrPC is directed against a part of the order dated August 3, 1978 passed by the Learned Additional Sessions Judge, Gangapur City, where by the learned Judge directed that the attachment of two plots of land which were the bone of contention between the rival parties, would remain in operation until the Magistrate to whom the case was remanded, decided as to whether or not it was a fit case for further proceedings under Section 145 CrPC. It will be seen that the learned Addl. Sessions Judge has in the exercise of his revisional jurisdiction' set aside the order of attachment passed by the learned Magistrate under Section 146 CrPC on the ground that such an order could be justified only if a preliminary order wider Section 145(1) CrPC has first been passed and that since no preliminary order as required by Section 145 (1) CrPC had been passed in this case, the order of attachment under Section 146 CrPC was illegal.
2. The petitioner's contention in this application under Section 482 CrPC is that if the learned Magistrate could not pass an order under Section 146 CrPC before passing an order under Section 145(1) CrPC. The learned Additional Sessions Judge also could not by the same token pass such an order. Mr. Garg, the learned Public Prosecutor, agrees that the learned Additional Sessions Judge has passed an illegal order which cannot be justifiable defended by him. Mr. Girg has however, argued that cot withstanding the fact that this is an illegal order, this is not a fit case calling for interference by this Court in the exercise of its extraordinary power tinder Section 482 CrPC.
3 After giving the matter my careful consideration. I am of opinion that since the order passed by the learned Additional Sessions Judge is patently illegal, it can be legitimately presumed that the illegality, if allowed to stand, would frustrate the ends of justice. I would accordingly allow this application, set aside the order of the learned Additional Sessions Judge to the extent indicated above, and remove the attachment of the land in-dispute as ordered by him. I may however, at once make it clear that the learned Magistrate who is at present seized of the case will be free to decide, in the event he makes an order under Section 145(1) CrPC, whether or not to make the order of attachment under Section-146 CrPC