Roda and ors. Vs. Nathu and ors. - Court Judgment

Excerpt:
criminal procedure code - section 145 and civil procedure code--order 19 rule 3--affidavit--neither reference to solemn affirmation nor invocation of god--held, affidavit is not proper.;when the evidence of the parties was taken up for re-examination as proposed by the learned counsel, the learned counsel for the present applicants pointed out that the affidavits which have been filed on behalf of the present non-applicants can not be said to be affidavits at all because they have not been made on oath as there is no invocation of god, or reference to solen n affirmation. mr. chopra has nothing to urge against this argument. - 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. p.n. shinghal, j.1. it has been argued by the learned counsel for the present applicants that the order of the learned sub-divisional magistrate, mandalgarh, dated 1.11.71, does not justify the order which has been passed in favour of the present con-applicants because the learned magistrate has not decided the question whether the present non-applicants were in possession on the date of the preliminary order & has also not recorded a finding that the present non-applicants had been forcibly and wrongfully dispomssed within two months next before the date of that order. a readirg of the impugned order of the learned magistrate shows that there is justification for this contention of the learned counsel because the learned magistrate has recorded a finding to the effect that the present non-applicants had proved their possession two months before the date of the preliminary order. the order of the learned magistrate therefore suffers from the defect pointed out by the learned counsel for the present applicants, and cannot be sustained as a valid order under section 146 cr.p.c.2. it was suggested by the learned counsel for the present non applicants that this court may now examine whether the present non-applicants had succeeded in proving that they were in possession at the date of the preliminary order or had been forcibly and wrongfully dispossessed within two months next before the date of the order. when the evidence of the parties was taken up for re-examination as proposed by the learned counsel, the learned counsel for the present applicants pointed out that the affidavits which have been filed on behalf of the present non-applicants can not be said to be affidavits at all because they have not been made on oath as there is no invocation of god, or reference to solemn affirmation. mr. chopra has nothing to urge against this argument. he has however pointed out that as such an objection regarding the admissibility of the affidavits had not been taken in the court of the magistrate, the present non-applicants did not get an opportunity to file fresh affidavits, and that the proper course for this court is to ask for a fresh decision of the case after giving both the parties an opportunity to file fresh affidavits. this is acceptable to the learned counsel for the present applicants also.3. in the result, the revision application is allowed, the impugned order of the learned sub-divisional magistrate, mandalgarh, dated november 1, 1971, and the revisional order of the learned sessions judge, bhilwara, dated january 6, 1972, are set aside and the case is sent back to sub-divisional magistrate, mandalgarh, for proceeding further in the matter according to law in the light of the observations made above.