The trial court's conviction under Section 188 IPC was invalid due to non-compliance with mandatory procedural requirements of Section 195 Cr.P.C., leading to a miscarriage of justice.

JUDGMENT :

(Avnish Saxena, J.)

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 20^th 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 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.Mehta, 1978 Cr.L.J.1040 (DB) 447that 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 28^th 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 7^th 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 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 19^th 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 19^th September, 2018. On the same day, after registration of the aforesaid case, a show cause notice was issued to the revisionist for 20^th 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