Whether Judicial officer claiming points towards disposal of a case without delivering signed judgment amounts to false declaration?

 In the backdrop of the above proceedings and on receipt of the consolidated report from the learned Principal District and Sessions Judge, South Goa, Margao, this Court took up the matter under Suo Motu Writ Petition No. 2/2022 and passed a detailed order dated 02.01.2023 observing that such Roznama showing that the judgment is pronounced, but without any signed copy of the judgment available on record, cannot be termed as judgment even under the provisions of Civil Procedure Code or Code of Criminal Procedure and therefore, such orders passed under the Roznama need to be quashed and set aside. We even directed the Registrar (Administration) of this Court to place the matter before the Administrative Committee for taking suitable action against the concerned Presiding Officer. {Para 21}

22. In spite of so many instances and the decision passed by this Court, it seems that the concerned Presiding Officer has not taken any care to keep the judgment ready in all respects before pronouncing it, which is the mandate as per Order XX of CPC and the relevant provisions under the Civil Manual, which is most disturbing. The learned Presiding Officer though claiming the points for disposal of such matters in her Returns, did not bother to keep the judgments ready in all respects.

23. The learned Principal District and Sessions Judge, South Goa, Margao, is therefore required to look into the Returns filed by the concerned Presiding Officer in connection with all these matters wherein the judgments and orders are not found in the file, but the points are claimed towards disposal of such matters. It also amounts to giving a false declaration in the Returns. If it is found that the Presiding Officer has claimed the points towards disposal of such cases on merits without actually disposing of the matters by keeping the signed judgment/order ready, it would amount to giving a false declaration.

24. We, therefore, direct the learned Principal District and Sessions Judge, South Goa, Margao, to thoroughly verify the monthly and four monthly Returns of the concerned Presiding Officer, Ms Aruna P. Fernandes, while working at Quepem or any other place in South Goa and to prepare a report as to whether she claimed the points towards disposal of the matters on merits wherein judgments/orders are not found in the file. Such a report shall be submitted within a period of 15 days from the date of the receipt of this order.

25. Coming back to the present matter, it is clear that the Roznama dated 18.02.2023 depicts that the judgment is pronounced; however, there is no signed judgment found in the entire record. Thus, such Roznama dated 18.02.2023 cannot be considered as a judgment of the Court by deciding the matter on merits. The Roznama further shows that an Application under Section 34 of the Arbitration Act was dismissed, and the proceedings were closed. Such order in the Roznama is without reasons, i.e. there is no signed judgment on record and, thus, cannot be considered as the judgment of the Court.

 IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 446 of 2023

Decided On: 09.08.2023

 Karnataka Cement Pipes Factory Eng. and Contractors Vs. State of Goa and Ors.

Hon'ble Judges/Coram:

M.S. Sonak and Bharat P. Deshpande, JJ.

Author: Bharat P. Deshpande, J.

Citation:  MANU/MH/3263/2023

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Whether the high court can treat suit or criminal case as pending before trial court if judgment was delivered on Roznama?

In the present case it is clear from the reports that though orally some judgments was pronounced on 14/01/2019 as quoted earlier and recorded in the Roznama, there is no such written judgment duly signed by the Presiding Officer is found in the file. The explanations were called from the concerned Presiding Officer by the Principal District and Sessions Judge. However, there is no satisfactory explanation coming forth. {Para 22}

27. Thus in sum and substance, there is no judgment and decree passed in the said civil suit by the learned Presiding Officer though recorded in the Roznama dated 14/01/2019. Such Roznama entry cannot be considered as judgment and decree as provided under the Code of Civil Procedure. For the reasons recorded by us in CrWP No. 578 of 2022 dated 06/10/2022, we are constrained to allow this petition as per the prayer clause 'a'.

28. Considering the above unfortunate facts and the submissions of the learned Counsel appearing for both the sides, the Roznama order dated 14/01/2019 in RCS No. 129 of 2010 is hereby quashed and set aside. Since there is no signed and dated judgment found on the record, we are unable to consider that the suit was disposed of on merit by the concerned Presiding Officer. Thus, we remand the said Civil Suit No. 129 of 2010 to the Civil Judge, Junior Division at Canacona with the direction that the suit be decided after hearing both the sides and in accordance with law within a period of three months from the date of the signed copy of this order is placed before it. It is made clear that both the parties shall co-operate with the learned Canacona Court in disposal of the said matter in the time frame fixed as above.

 IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 418 of 2022

Hemantkumar Sadanand Naik Gaonkar and Ors. Vs. Pio Rogerio Salem Cotta and Ors.

Hon'ble Judges/Coram:

M.S. Sonak and Bharat P. Deshpande, JJ.

Author: Bharat P. Deshpande, J.

Decided On: 02.01.2023.

Citation:  MANU/MH/0016/2023

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What is duty of Juvenile Justice Board while doing preliminary assessment of Juvenile for trying him as adult?

 The next important aspect that needs to be gone into and considered is, as to whether the inquiry and preliminary assessment conducted by the J.J.B. to pass final order under Section 18 sub-section (3) of the J.J. Act to try the JCLs as an adult, is sustainable in law? In order to satisfy myself, I have gone through the Roznama maintained by the J.J.B. The Roznama relevant for the purpose of this proceeding is from 04.12.2018 to 01.04.2019. It is to be noted that the roznama is maintained to record the summary of the proceeding undertaken before the Court on the given date. On 04.12.2018, the informant made an application at Exh.52 under Section 15 read with Section 18 of the J.J. Act and prayed to try the JCLs (accused nos. 1 and 5) as an adult. Perusal of the roznama of the proceeding from 04.12.2018 to 01.04.2019 would show that there is no mention of providing a copy of the application either to the JCLs or their advocates. Similarly, there is no mention of providing copy of the SIR submitted by the Probation Officer either to the JCLs or to their advocates. The report of the Psychiatrist was received by the J.J.B. on 01.04.2019. The order in question was passed on 01.04.2019. There is no mention in the Roznama that a copy of the report of the Psychiatrist was provided to the JCLs or to their advocates. It is to be noted that the inquiry to arrive at a conclusion to try the child as an adult, has to be conducted in a transparent and fair manner. The record of inquiry maintained by the Court in this regard must not leave any scope to doubt the reasonable and fair approach of the Board. It is to be noted that in the roznama, there is no mention of presence of the advocates for the JCLs and presence of JCL nos. 1 and 5, on some dates. It is to be noted that the object behind calling SIR through the Probation Officer and the report of the Psychiatrist, is to arrive at a final decision on the point of trial of the JCLs as an adult. Section 15 of the J.J. Act provides for preliminary assessment in case of heinous offence alleged to have been committed by a child, who has completed or is above the age of 16 years. The Board is required to conduct a preliminary assessment with regard to his mental and physical capacity to commit the offence, ability to understand the consequences of the offence and the circumstances in which the alleged offence is committed. The Board, in the process of assessment, may take assistance of experienced Psychiatrists or psychosocial workers or other experts. In this case, the J.J.B. called SIR from the Probation Officer and also report from the Psychiatrist to decide the application (Exh.52) made by the informant, father of the victim, to try the JCLs as an adult in view of heinous offence committed by them.{Para 12}

13. It is to be noted that in the process of this preliminary assessment, the J.J.B. on its own, in exercise of the powers under Section 14 of the J.J. Act or on the application of the victim or the informant, is required to ensure the effective and meaningful participation of the child. The Board has to follow the general principles laid down under Section 3 of the J.J. Act for proper administration of the Act. The inquiry conducted under Section 15 of the J.J. Act must display the adherence to the basic procedural standards of fairness. The child in this process is required to be given fair and unbiased hearing.

14. In this case, the J.J.B. did not conduct the inquiry and preliminary assessment as provided under Sections 14 of the J.J. Act. The J.J.B. on the application made by the informant, father of the minor victim, started preliminary assessment as provided under Section 15 of the J.J. Act. It is to be noted that the J.J.B. was required to display fairness and unbiased approach in the entire process. The J.J.B. was required to act strictly in accordance with the provisions of the J.J. Act and ensure transparency and fairness in the proceeding. The roznama of the J.J.B. produced on record does not indicate that the J.J.B. ensured active participation of the JCLs in the inquiry proceeding. It needs to be stated that the final order passed by the J.J.B. to try the JCLs as an adult with such a half-hearted inquiry, has caused prejudice not only to the JCLs, but to the informant and the victim. In this case, the J.J.B. has not followed the procedure laid down under the J.J. Act and the J.J. Rules while conducting preliminary assessment of the JCLs to try them as an adult. It has caused prejudice not only to the JCLs, but also to the informant and the victim. The trial of the child below 18 years of age before the J.J.B. is a rule and trial of the child above 16 years of age before the regular Court as an adult, is an exception. The exceptional circumstances must exist and must be proved within the parameters of Section 15 of the J.J. Act to try the child as an adult in case of heinous offences. In this case, the J.J.B. has not followed the procedure prescribed under the J.J. Act and the J.J. Rules. The order passed by the J.J.B. and confirmed by learned Additional Sessions Judge/Children's Court, therefore, has caused prejudice not only to the JCLs, but also to the informant and the victim. The orders are, therefore, required to be quashed and set aside.

15. The J.J.B. consists of Metropolitan Magistrate or Judicial Magistrate, First Class with at least three years experience and two social workers selected by following the procedure. Section 7 of the J.J. Act provides the procedure to be followed by the J.J.B. Section 7, subsection (3) and the Proviso to sub-section (3) of the J.J. Act is required to be considered in the context of the question involved before this Court. Sub-section 3 provides that a Board may act notwithstanding the absence of any member of the Board and the order of the Board shall not be invalid by the reason only of the absence of any member during any stage of proceedings. Proviso to sub-section (3) of the J.J. Act is applicable to the proceeding where the order is with regard to the final disposal of the case or in making the order under sub-section 3 of Section 18. It provides that at the time of final disposal of the case or in making order under sub-section (3) of Section 18, at least two members including the Principal Magistrate, must be present for the said purpose. Perusal of the relevant roznama does not indicate presence of remaining two members of the Board. Even the order passed by the J.J.B. does not make a reference about presence of the remaining two members. The order is required to be authored by the Principal Magistrate. However, in the order, there must be a mention of the presence of remaining members of the Board. In this case, neither in the roznama, nor in the final order, there is mention of presence of the remaining two members. It is to be noted that this mandatory procedural compliance is required to be strictly met. In such serious matter, casual or mechanical approach cannot adopted. On this count also the order passed by the J.J.B. cannot be sustained.

 In the High Court of Bombay(Nagpur Bench)

(Before G.A. Sanap, J.)

Mustafa Khan Jabbar Khan Vs State of Maharashtra, 

Criminal Revision Application No. 32 of 2020

Decided on June 28, 2023, 

Citation: 2023 SCC OnLine Bom 1285.

Read full Judgment here: Click here

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Whether victim or her relative can make application before Juvenile Justice Board to try Juvenile as adult?

The J.J.B., as per the provisions of Section 15 of the J.J. Act, on its own, was required to conduct the preliminary assessment with regard to the mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which the offence was committed by the JCLs. This inquiry by the J.J.B., in terms of Section 14, sub-section (3) of the J.J. Act, has to be conducted within the prescribed timeline. In this case, it appears that the J.J.B. has failed to discharge its duty to make the preliminary assessment as provided under Section 14, sub-section (3) of the J.J. Act. Section 2, clause (33) defines “heinous offences”. The said definition is extracted below:—

“2. Definitions:—

(33) “heinous offences” includes the offences for which the minimum punishment under the Penal Code, 1860 (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more.”

10. It is to be noted that the minor victim was subjected to sexual assault. The persons involved in the crime are facing serious charge of gang rape. In my view, considering the nature of crime and keeping in mind the definition of heinous offences provided above, it was the bounden duty of the J.J.B. under the J.J. Act to conduct the preliminary inquiry and assessment. The J.J.B. has failed to discharge its duty in accordance with law. The father of the victim made an application at Exh.52 and called upon the J.J.B. to conduct preliminary assessment/inquiry and try the JCLs i.e. accused nos. 1 and 5 as an adult with the remaining five accused. On behalf of the JCLs, an objection has been raised that the inquiry contemplated under Section 15 of the J.J. Act, after prescribed timeline, neither can be conducted by the J.J.B. nor an application for such an inquiry can be entertained at the behest of the informant or the victim. In my view, this submission can not be accepted for more than one reason. Learned Additional Sessions Judge has dealt with this aspect in great detail. I record my concurrence with the observations made by the learned Judge on this point. It is to be noted that the timeline has been prescribed under the J.J. Act for conducting the inquiry by the J.J.B.

11. The J.J.B. consists of a Metropolitan Magistrate or Judicial Magistrate, First Class and two other members. The J.J. Act does not bar the right of the victim or the informant to invoke the provisions in case of failure of the J.J.B. to discharge its duty under the law. It is to be noted that to try the JCLs as an adult in case of heinous crime and where the age is above 16 years, is an exception to the general rule of trying the child below 18 years of age as a juvenile. It is to be noted that there is no express provision under the J.J. Act, whereby substantial right of the victim or the informant to put the law into motion and apply to the J.J.B. to comply the mandate of the J.J. Act, is debarred or taken away. Therefore, in my view, in this case on the ground of procedural lapse on the part of the J.J.B., the right of the informant to apply before the J.J.B. even after prescribed timeline cannot be taken away. I record my agreement with the finding recorded by learned Additional Sessions Judge as well as by the J.J.B. on this point.

 In the High Court of Bombay(Nagpur Bench)

(Before G.A. Sanap, J.)

Mustafa Khan Jabbar Khan Vs State of Maharashtra, 

Criminal Revision Application No. 32 of 2020

Decided on June 28, 2023, 

Citation: 2023 SCC OnLine Bom 1285.

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Whether Magistrate can reject application for certified copy of ordersheet?

 I have examined Section 327 of the Code of Criminal
Procedure along with Rule 142 of the Criminal Manual and these
provisions clearly lay down that criminal court is an open court for
the purpose of inquiring into any matter or trying any offence and
public generally has an access to it. Provided that in any particular
case, the Magistrate or the Judge may direct that public in general
or any particular person may not be present in the Court or the
case falls in other sub-sections of Section 327 of the Code of
Criminal Procedure. Rule 377 of the Criminal Manual lays down
that the parties to any proceeding can apply for obtaining certified
copy of any judgment, order, deposition, memorandum of evidence
or any other document filed in the said proceedings. It further says
that the application for certified copy must state the purpose for
which it is required whether for private use or otherwise.
Therefore, the law is clear that an accused person or litigant has a
right to obtain certified copy from the Court which is having the
custody of the record. The expression ‘roznama’ (order-sheet) has
not been specifically mentioned but it would be covered by the
expression ‘order sheet’ as mentioned in Rule 377 of the Criminal
Manual and therefore, an accused person or a litigant is entitled to
apply for copy of the order-sheet (roznama) which has to be
provided by the Judge or the Magistrate as the case may be.
Though it has not come on record but assuming that in an
application for certified copy it has not been stated that it is
required for private use or otherwise, even then the Magistrate can
direct the person who has applied for certified copy of the order to

correct the application or he can reject the application with liberty
to apply for a fresh certified copy of the order after clearly
mentioning therein that copy applied for is for private use or
otherwise, but straightway without any liberty to the applicant the
application for certified copy of the order-sheet (roznama) cannot
be rejected. Therefore, the order of the Magistrate cannot be
sustained.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2321 of 2013

OMPRAKASH RAMESHWARUPDAS AGGRAWAL. Vs  STATE OF GUJARAT 

CORAM:  THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI
Citation;2015 CRLJ(NOC)496 Guj

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