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2003 DIGILAW 518 (ORI)

PRAMOD KUMAR SETHI v. STATE OF ORISSA

2003-08-22

P.K.MOHANTY

body2003
P. K. MOHANTY, J. ( 1 ) THIS revision is directed against the order of the learned Assistant sessions Judge, Rourkela in S. T. Case No. 123/31 of 1999 holding that the petitioner is not a juvenile in terms of Juvenile Jus- ticqa^ct, 1986, confirmed in Criminal Appeal No. 27 of 2001 by the learned Additional Sessions Judge, Rourkela. ( 2 ) THE case In nut-shell is that the petitioner along with another was accused of committing offences punishable under Sections 364, 302, 376 (2) (g) and (f)/34 of the Indian Penal Code on 4-1-1999. He was arrested and produced before the learned S. D. J. M. , Rourkela on 5-1-1999 in G. R. Case no. 3 of 1999. A prayer was made on 6-5-1999 before the learned Magistrate to send the petitioner to the juvenile Jail, since he was a juvenile as on the date. Charge-sheet was submitted on 20-5-1999 under the aforesaid sections and the case was committed to the Court of Session to be tried by the learned Additional Sessions Judge, rourkela. A petition appears to have been filed on 2-3-2001 before'the'learned Addi- ; tional Sessions Judge by the accused petitioner that his date of birth being 25-5- 1983, he is a juvenile and as such to be tried under the Juvenile Justice Act. The learned additional Sessions Judge directed the records of the case to be transmitted to the designated Juvenile Court of Additional chief Judicial Magistrate-cum-Presiding officer, Juvenile Court, Rourkela for determination of the age of the accused and furnish a report within two months. ( 3 ) THE accused-petitioner was produced before the learned Additonal Chief Judicial magistrae, Rourkela, the designated Juvenile Court on 24-3-2001. The learned Addl. C. J. M. by order dated 1-5-2001 held that the petitioner was a juvenile on the date of occurrence and as such to face the trial in the Juvenile Court. However, the case against the co-accused was split up and he faced his trial in regular Court. The State challenged the order dated 1-5-2001 of the learned Assistant Sessions Judge in Criminal Appeal No. 8 of 2001 and the learned additional Sessions Judge by order dated 28-7-2001 allowed the appeal and remitted the matter to the Addl. C. J. M. The learned addl. The State challenged the order dated 1-5-2001 of the learned Assistant Sessions Judge in Criminal Appeal No. 8 of 2001 and the learned additional Sessions Judge by order dated 28-7-2001 allowed the appeal and remitted the matter to the Addl. C. J. M. The learned addl. C. J. M. by order dated 13-9-2001, on enquiry and basing on the report of the Radiologist and occification test, held that the accused-petitioner was a juvenile. However, on the application of the State, the matted was reopened and relying on the decision of the Apex Court in Amit Das v. State of Bihar, air 2000 SC 2264 held that on the relevant date, when he was produced before the competent Court on 24-3-2001, the petitioner being aged 17 years, was not a juvenile within the meaning of the provisions of the Juvenile Justice Act," 1986. The petitioner carried an appeal, Criminal appeal No. 27 6f 2001, but the learned Additional Sessions Judge by order dated 4-1-2002 upheld the order. Hence the present revision. ; ( 4 ) THE main contention of Sri B. M. Patnaik, learned counsel for the petitioner is that the,learned Addl- C. J. M.-cum-Juve,- nile Court, onqe having held that the petitioner was a juvenile by his order dated 13 9-2001, he was not competent to reopen or review his own order and come to. a different finding that the petitioner was a juvenil e as on the date he was produced before the competent Court, i,e. ,on 24-1-200; ( 5 ) THE law is fairly Well settled that the criminal Courts are that not vested with the power of review of their own orders, excepting for clerical or arithematical errors. Section 362 of the Code of Criminal Procedure mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the some except to correct clerical or arithematical error. This is however, subject to the exceptions contained in Section 398 of the Code which contemplates that the High Court or the Court of Session in exercise of powers under Section 397or otherwise may direct, the C. J. M. by himself make or by any Magistrate subordinate to him to enquire into any complaint, which has been dismissed under section 203 or sub-section (4) of Section 203, Cr. P. C. or into the case of any person accused of an offence, who has been discharged, subject to proviso thereto. The provision of Section 362, Cr. P. C. is based on the acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in absence of any statutory provision, becomes functus officio and is not authorised to entertain a fresh prayer for the same relief unless the former order is set aside by a Court of competent Jurisdiction in the manner prescribed by law. No review of an order is contemplated under the Code of Criminal Procedure. ( 6 ) IN that view of the matter, the order of the learned Addl. C. J. M. , the designated juvenile Court, once having passed an order dated 13-9-2001 that the petitioner was a juvenile delinquent and thus is to be tried in a Juvenile Court, on the application of the learned Additional Public Prosecutor, could not have reviewed the said order by his subsequent order dated 1-10-2001 unsettling ihe position. The order dated 1-10-2001 having been passed by the learned addl. C. J. M.-cum- designated Juvenile court on an application by the Additional public Prosecutor, could not have reviewed his own order and pass the impugned order dated 1-10-2001. Such order, therefore, is clearly without jurisdiction and liable to be quashed. Consequently, the appellate order of the Additional Sessions Judge, Rourkela affirming the said order is illegal and has to be quas,hed. ( 7 ) THE learned Standing Counsel for the state, however, submits that since the earlier order of the learned Addl. C. J. M.-cum- juvenile Court was contrary to the principle of law laid down by the Apex Court and that illegality having come to the knowledge of this Court, this Court should take judicial notice of the same and may set aside the said order in exercise of the inherent powers of the Court. C. J. M.-cum- juvenile Court was contrary to the principle of law laid down by the Apex Court and that illegality having come to the knowledge of this Court, this Court should take judicial notice of the same and may set aside the said order in exercise of the inherent powers of the Court. It appears that the order declaring the petitioner as a juvenile deliquent and as such to be tried by the juvenile Court in accordance with the provisions of the Juvenile Justice Act had not been challenged by the State in appeal under Section 37 of the Juvenile Justice Act and it had become final, but after the appeal period was over, an application seems to have been filed for review of the order on the basis of the decision of the Apex Court in Arnit Das's case (2000 Cri LJ 2971) (supra ). In such view of the case, the matter having attained its finality, it cannot be reviewed/reopened under the inherent powers of the Court under Section 482, Cr. P. C. ( 8 ) THE second limb of the argument of the learned counsel for the petitioner whether the date of occurrence, the date when the accused is produced before the magistrate for the first time or the date when he is produced/appears before the competent Court to deal with a juvenile delinquent is the relevant date for determination as to whether, the accused is a juvenile, has more or less become academic, in view of the view already taken on the first question as to whether, the Court below had the competence to review its own order. ( 9 ) HOWEVER, so far as the legal position is concerned, it is no more res integra. The apex Court in Rajinder Chandra v. State of chhatisgarh, AIR 2002 SC 748 following the dictum in Arnit Das's case (2000 Cri LJ 2971) (supra) held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, the hyper technical approach should not be adopted. While appreciating the evidence adduced on behalf of the accused in support of his plea that he was a juvenile and if two views may be possible, on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline case. The Apex Court in Arnit Das's case (supra) while considering the scheme of the Act and its applicability, had held that in view of Section 8 of the Act when any magistrate not empowered to exercise power of the Board or the Juvenile Court is of the opinion that a person brought before him under any of the provisions of the Act otherwise than for the purpose of giving evidence, is a juvenile, he shall record such opinion and forward the juvenile and the record to the competent Court. The competent authority to which the proceeding is so forwarded is to hold the enquiry as if the juvenile had originally been brought before it. The enquiry as to the age of the juvenile has to be made when he is brought or appears before the competent authority and the Police Officer or a Magistrate who is not empowered to act or cannot act as a competent authority has to merely form an opinion guided by the apparent age of the person and in the event of forming an opinion that he is a juvenile, he has to be forwarded to the competent authority. The competent authority then shall proceed to hold enquiry as to the age of that person for determining the same by reference to the date of the appearance of the person before it or by reference to the date when the person was brought before it under any of the provisions of the Act. It is irrelevant what was the age of the person on the date of commission of the offence. The Apex Court in considering sub-section (1) of Section 32 of the Act held that a person brought before it also suggests that the competent authority is required to record the finding by reference to an event in present before it, i. e. by reference to the date when the person is brought before it and not by reference to a remote event, i. e. the date on which the offence was committed. It was further held "that the Juvenile justice Act provides for justice after the onset of delinquency. The date of the com- mission of the offence is irrelevant for forming out whether the person is a juvenile within the meaning of clause (h) of Section 2 of the Act. The crucial date for determining the question whether the person is a juvenile is the date when he is brought before the competent authority. The Apex court discussing the earlier judgment and following the rule of subsilentio laid down the aforesaid law. The Court authoritatively held that the crucial date for determining the question whether a person is a juvenile is the date when he is brought before the competent authority. ( 10 ) HOWEVER, all this is academic and need not detain us since the competent court on the basis of materials on record and the relevant dates, came to a conclusion thai the delinquent petitioner was a juvenile and as such is to be produced and tried by a Juvenile Court and it has already been held that the competent Court i. e. the addl. C. J. M. was not authorised to review his own order unless it comes within the scope and ambit of Section 362 of the Code of criminal Procedure. ( 11 ) IN such view of the matter, the impugned orders of the learned Additional Sessions Judge as well as the learned Addl. C. J. M. dated 1-10-2001 are set aside. Consequently, the order of the Additional Chief judicial Magistrate-cum-designated Juvenile Court declaring that the petitioner is a juvenile and to be tried as such stands revived and the case is to proceed accordingly in accordance with law promptly. The revision is allowed in the aforesaid terms. Revision allowed.