Misc. Case No. 429 of 2018 · High Court · 2025 on 17 May 2025 — Misc. Case No. 429 of 2018

Judgment

1. The present revision has been preferred under Section 397 read with Section 401 Cr.P.C. by the revisionist/accused- Chandradhar Gaur, (Investigating Officer of case crime no. 508 of 2018 registered under Section 354 IPC and Sections 7, 8 of Protection of Children from Sexual Offences Act, 2012 (POCSO), Police Station-Chhata, District Mathura), on being aggrieved by judgement of conviction and sentence dated 20th September, 2018 passed by the Court of Special Judge (POCSO Act), Mathura, in Criminal Misc. Case No. 429 of 2018 whereby invoking Section 345 Cr.P.C. convicted the revisionist/accused under Section 188 IPC and punished him by sentence of six months imprisonment as well as fine of Rs. 1000/- and 10 days simple imprisonment in default of payment of fine. APPEAL OR REVISION :-

2. Though, Section 351 Cr.P.C. provides remedy of appeal for conviction recorded, inter alia, under Section 345 Cr.P.C., but the revision has been preferred, as the learned trial court has 2 convicted and sentenced the revisionist/accused for an offence under Section 188 IPC, which is not provided under Section 345 Cr.P.C., therefore, the correctness, legality and regularity of proceeding, propriety of findings recorded by the trial court has

been challenged in revision instead of appeal. It has been held by the Division Bench of the Gujarat High Court in the case of Chinubhai Keshav-lal Nanavati Vs. K.J.Mehta1 that in case of unjust conviction, moving a Criminal Court in appeal or revision is the right course of action. Therefore, the revision.

3. Before venturing into the present matter, it would be expedient to consider it’s genesis, which arose from case crime no. 508 of 2018, P.S. Chhata, District Mathura. PROSECUTION CASE OF CASE CRIME NO. 508 OF 2018 :-

4. The informant- Devaki Nandan has lodged the first information report at P.S. Chhata, District Mathura on 28th August, 2018 at 11:51 hours under Section 354 IPC and Sections 7, 8 of POCSO Act for the offence committed with his elder daughter ‘X’ by accused Ishwar Dayal on 7th July, 2018 at 16:00 hours on Nagla Dharampur Road, P.S. Chhata, District Mathura, when the informant’s elder daughter aged about 10 years went for nature’s call along with her younger sister aged about 3 years, at that time the accused aged about 40 years reached there and gave Rs. 10/- to the victim and allured her to come to his residence for taking Rs. 10/-. The victim when refused to accept Rs. 10/-, the accused has caught hold of her cheeks and started doing obscene act by removing his cloths. At this juncture, the informant’s mother-Smt. Sumitra, wife-Shimla, Sundar son of Ram Swarup and Mano son of Pappu, all resident of Khaira, P.S.Chhata, District Mathura came there, witnessed the incident and saved the victim. The 1 [1978 Cr.L.J.1040 (DB) 447] 3 investigation of the case has been entrusted to S.I.-Vipin Sharma, as is revealed from the above FIR (annexed as Annexure-3). GENESIS OF CRIMINAL MISC. CASE NO. 429 OF 2018 (State Vs. Chandra Dhar Gaur) :-

5. The impugned judgement reveals that the Presiding Special Judge, POCSO Act had issued certain directions as to who shall be the investigating officer and further directions regarding investigation of the case, which purportedly has not been complied by the Investigating Officer. One of the direction issued by the Special Judge, led to the filing of report dated 19th September, 2018 by Ahalmad of the Court Sri Nagendra and Court Moharrir Sri Bharat Singh against the revisionist, that he has not complied with the directions issued by the Court. Hence, registration of Misc. Case no. 429 of 2018 under Section 345 Cr.P.C. read with Sections 228 and 188 IPC on 19th September, 2018. On the same day, after registration of the aforesaid case, a show cause notice was issued to the revisionist for 20th September, 2018 to furnish reply. It is revealed from the impugned judgement that the reply has not been filed and the conviction has been recorded in absence of the revisionist, who was sentenced accordingly.

6. As the impugned judgement is being dealt with at a later stage of discussion, hence, the same has not been considered under this head. GROUNDS TAKEN BY THE REVISIONIST :-

7. The revisionist while assailing the judgement and order of conviction and sentence has inter alia, taken the grounds that the statement of victim got recorded under Section 164 Cr.P.C. on 20th September, 2018 by an Additional Civil Judge (J.D.), Court No.8, Mathura and no allegation has been made by her against the 4 police personnel; the impugned judgement is illegal, contrary to law and against the provisions of Cr.P.C.; the revisionist has conducted proper investigation of the case and complied all the orders of the court concerned; the impugned judgement and order of conviction has been made in contravention to the provision of Section 352 Cr.P.C. after taking cognizance of offence under Section 345 Cr.P.C. read with Sections 228 and 188 IPC; the court concerned has got no jurisdiction to proceed with the case in view of Section 195 Cr.P.C. to punish a person in contempt of his own authority; the record of the case in which the revisionist has been convicted and sentenced does not have any material against the revisionist on the basis of which the impugned judgement has been passed; the impugned judgement and order has been passed in contravention to the principles of natural justice; the judgement of conviction and thereafter punishment has been made against the revisionist in his absence, without giving proper opportunity of hearing; the orders passed during the investigation suffers the test of legality of procedure and jurisdiction; and the court concerned has passed the impugned judgement in absence of bonafide, because vide Notification dated 17th September, 2018, the Presiding Judge has been transferred from the court concerned and before leaving the charge on 20th September, 2018, passed the impugned judgement in haste. As such, it has been prayed that the impugned judgement and order of sentence is liable to be set aside. ARGUMENTS OF PARTIES:-

8. Sri G.S.Chaturvedi, learned Senior Counsel assisted by Sri Alok Ranjan, learned counsel for the revisionist has submitted besides the written submission that the impugned judgement and order has been passed against the principles of natural justice; against the provision of Cr.P.C., particularly Section 352 Cr.P.C.; 5 wrongly invoking Section 345 Cr.P.C.; convicted the revisionist under Section 188 IPC, in the garb of punishing for Contempt of Court, which is the exclusive jurisdiction of High Court. It is further submitted that the learned court has acted malafidely, as the criminal misc. case has been registered on 19th September, 2018, the show cause notice has been sent to the revisionist on the same day during night for 20th September, 2018, calling for explanation of revisionist and without adducing evidence, the order of conviction has been recorded on the very next day of inception of case. It is further submitted that the revisionist has neither been given the opportunity of explanation nor his statement under Section 313 Cr.P.C. has been recorded. Moreover, the offence of Section 188 IPC in which the revisionist has been convicted is triable by Magistrate. Lastly submitted, that the exercise of jurisdiction by the court concerned is flagrant misuse of process of law, hence, prayed that the revision is liable to be allowed. He has relied upon the cases of C. Muniappan & others Vs. State of Tamilnadu2, M.S. Ahlawat Vs. State of Haryana and Another3, C. R. Rajesekaran Vs. Judicial Magisstrate Nagapattinam4 and S. Rajanikanth Vs. Tmt. C. Thirumagal, learned VII Metropolitan Magistrate, George Town, Chennai-6000015.

9. Sri Alok Sharma, learned AGA-I has submitted that the judgement of conviction and sentence has been passed by learned Court after considering all the material and evidence available on record, after application of his judicial mind. It is further submitted that Judge, POCSO Act has got a right and duty to consider whether the investigation in the cases of POCSO Act has been rightly carried out by the Investigating Officer or not. It is 2 3 4 5