Advocates:
['RAMJI SHRIVASTAVA', '', 'ASHISH AGARWAL', 'G A']

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 1569 of 2021

Gaurav Tirkha

......Petitioner

Versus

State of Uttarakhand and another ….Respondents

Present:

Mr. Ramji Srivastava, Advocate for the petitioner.

Mr. Pratiroop Pandey, A.G.A. for the State.

JUDGMENT

Hon’ble Ravindra Maithani, J.(Oral)

Challenge in this petition is made to the

proceedings of Criminal Case No. 6174 of 2019, State Vs.

Gaurav Tirkha, pending in the court of Chief Judicial

Magistrate, Dehradun (for short, “the case”).

2.

According to the FIR, the Child Welfare

Committee received an information that the petitioner

takes labour from a girl child, aged 10 years and she has

been tortured also. The members of the Child Welfare

Committee, Dehradun interacted with the victim. She

confirmed the allegations. Marks of the injuries were also

noted on her person. FIR No. 72 of 2018, under Section

75 of the Juvenile Justice (Care and Protection of

Children) Act, 2015 (for short, “J.J. Act”) and Section 5

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and 8 of the Child and Adolescent Labour (Prohibition

and Regulation) Act, 1986 (for short, “the Act”) was

lodged. After investigation, charge sheet was submitted

under Section 55 of the J.J. Act and Section 5/8 of the

Act.

3.

The Court on 16.11.2019 took cognizance

under Section 75 of the J.J. Act as well as under Section

14 of the Act.

4.

Heard learned counsel for the parties and

perused the record.

5.

Learned counsel for the petitioner would

submit that cognizance under any of the offences under

the Act may be taken only on a complaint made under

Section 16 of the Act. In such matters, it is argued that

FIR may not be lodged and matter cannot be investigated.

6.

Learned State counsel fairly conceded that the

cognizance could not have been taken under Section 14 of

the Act on any police report. He would submit that to that

extent, the order may be interfered with, but the option of

filing complaint under the Act should be kept open.

7.

Section 14 of the Act provides for penalties for

offences under the Act. Section 16 of the Act, describes

the procedure. It is as hereunder:-

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“16. Procedure relating to offences.- (1) Any

person, police officer or Inspector may file a complaint

of the commission of an offence under this Act in any

court of competent jurisdiction.

(2)

Every certificate as to the age of a child

which has been granted by a prescribed medical

authority shall, of the purposes of this Act, be

conclusive evidence as to the age of the child to whom

it relates.

(3) No court inferior to that of a Metropolitan

Magistrate or a Magistrate of first class shall try any

offence under this Act.”

8.

A bare perusal of Section 16, sub Section (1)

makes it abundantly clear that commission of any offence

under the Act may be reported to the court of competent

jurisdiction by way of filing a complaint. In the instant

case, for the offences under the Act, FIR has been lodged

and the cognizance taken under Section 14 of the Act,

which definitely is not in accordance with the provisions

of the Act. To that extent, the order taking cognizance

dated 16.11.2021 needs interference.

9.

Cognizance under Section 75 of the J.J. Act

has also been taken by the court by the order dated

16.11.2019 passed in the case.

10.

Section 75 of the J.J. Act, inter alia, provides

for punishment for cruelty to a child which may extend to

three years or with fine of one lakh rupees. There are

other categories of offences under Section 75 of the Act as

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well. The procedure for trial under such offence has been

given under Section 86 of the J.J. Act and, in the instant

case, the offence under Section 75 of the J.J. Act is

cognizable and triable by the court of Magistrate, 1^st

Class.

11.

In the instant case, cognizance under Section

75 of the J.J. Act has