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2007 DIGILAW 675 (CAL)

AURANGJEB ALAM ALIS GUDDU v. STATE OF WEST BENGAL

2007-09-03

ARUN KUMAR BHATTACHARYA, DEBIPRASAD SENGUPTA

body2007
ARUN KUMAR BHATTACHARYA, J. ( 1 ) IN this revisonal application under Section 401 read with 482 of the Cr. P. C. , the petitioner has sought to assail the enquiry report regarding alleged juvenility submitted by the learned Additional District and Sessions Judge, 9th Fast Track Court, Calcutta. ( 2 ) THE circumstances leading to the above application are that the petitioner was convicted under Section 302/34, I. P. C. and sentenced to suffer imprisonment for life and to pay fine of Rs. 5,000/- by the learned judge, 12th Bench, City Sessions Court, Calcutta in Sessions Case No. 71/2001. At the time of hearing of the appeal preferred by the petitioner it was contended by the learned Counsel for the petitioner for the first time before this Court that the appellant/petitioner was a juvenile on the date of incident i. e. 26. 3. 2001. Accordingly, following the decisions of the Apex court rendered in Gopinath Ghosh v. State of West Bengal, AIR 1984 SC 237 and Bhola Bhagat v. State of Bihar, 1998 C Cr LR (SC) 82, the matter was referred on 28. 3. 2005 to the learned Judge, 12th Bench, City Sessions court, Calcutta to certify a finding as, to the age of the petitioner/appellant on the date of incident after giving opportunity to both sides to lead oral and documentary evidence. ( 3 ) THE learned Chief Judge, City Sessions Court, Calcutta transferred the matter to the learned Additional Sessions Judge, 9th Fast track Court, Calcutta who held an enquiry and submitted a report holding that the accused/petitioner was not under the age of 18 years on the date of incident. ( 4 ) THE petitioner moved in revision being C. R. R. 185 of 2007 against the said report before a learned Single Judge of this Court who passed an order for placing the matter before this Bench, as the report was submitted in pursuance of the order passed by this Bench, and as such the matter has been assigned before this Berrch. ( 5 ) SINCE Mr. ( 5 ) SINCE Mr. Basu, learned senior Counsel for the petitioner challenged the said enquiry report on a preliminary ground contending that no Court other than that as specifically directed by the Division Bench of this Court could hold the enquiry and as such the report is bad in law, a report was called for by us from the learned Chief Judge, City Sessions court, Calcutta as to the reason for transferring the matter from the Court of learned Judge, City Sessions Court, 12th Bench to the Court of learned additional District and Sessions Judge, 9th Fast Track Court, Calcutta. ( 6 ) ACCORDING to the report submitted by the learned Chief Judge, city Sessions Court, Calcutta, due to bifurcation of the City Civil and Sessions court, Calcutta, City Sessions Court started to function at Bichar Bhavan on and from 8. 11. 2005, and pursuant to the direction passed by this Court all the sessions cases pending in different Courts of City Civil and Sessions court were withdrawn and transferred to different Fast Track Courts at Bichar bhavan, Calcutta for trial, and as such the concerned sessions case being no. 71/01 was withdrawn from the Court of learned Judge, City Civil and sessions Court, 12th Bench and was transferred to the learned Judge, 9th fast Track Court, Bichar Bhavan, Calcutta for disposal. ( 7 ) MR. Basu demonstrated that since the Court of learned Judge, 12th Bench, City Civil Court is still there, the enquiry ought to have been held by the said learned Judge, 12th Bench and not by any other Court on the face of direction passed by this Court. ( 8 ) THERE are two types of jurisdiction of criminal Court viz. (1)jurisdiction with respect to power of Court to try particular kind of offence, and (2) its territorial jurisdiction. When the former goes to the root of the matter and any transgression of it makes the entire trial void, the latter is not of a peremptory nature and is curable, as was held in the case of rajkumari v. Dev Raj reported in AIR 1977 SC 1101 . "jurisdiction" means the power of a Court to hear and determine a cause to adjudicate or exercise any judicial power in relation to it. "jurisdiction" means the power of a Court to hear and determine a cause to adjudicate or exercise any judicial power in relation to it. The said expression has a very wide sense not only at the beginning but must retain it unbroken until it had decided the case. Before a Court canlbe held to have jurisdiction to decide a particular matter, it must not only have jurisdiction to try the cause brought but must also have the authority to pass the order sought for. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties. Reference may be made to the case of Official Trustee, west Bengal v. Sachindra reported in AIR 1969 SC 823 at 828. ( 9 ) IN the present case, since bifurcation of the Courts of City Civil and sessions Court by virtue of this Court's direction resulted in non-existence of the Court of Judge, 12th Bench, City Sessions Court to deal with the criminal cases, the question of holding the enquiry by the learned Judge, 12th Bench, City Civil Court having only the power to deal with the civil cases does not arise, and as such the learned Chief Judge, City Sessions court, Calcutta having rightly distributed, in the circumstances, the sessions cases pending in the Court of erstwhile City Civil and Sessions Courts, amongst the Fast Track Courts, Bichar Bhavan, Calcutta and allotted the present case for enquiry to the learned Additional District and Sessions Judge, 9th Fast Track Court, Calcutta, the said Additional Sessions Judge, 9th fast Track Court alone could decide the issue. Accordingly, the above contention of the learned Counsel for the petitioner is not at all sustainable. ( 10 ) MOREOVER, a right of action is something different from the choice of forum and the choice of forum is a matter of procedure and not a substantive right. No litigant has or can have a vested right in a particular forum. As such, on this ground too, the petitioner's contention for holding the enquiry by the learned Judge, 12th Bench who has no longer any authority to deal with criminal cases after bifurcation of the Courts, is not tenable. No litigant has or can have a vested right in a particular forum. As such, on this ground too, the petitioner's contention for holding the enquiry by the learned Judge, 12th Bench who has no longer any authority to deal with criminal cases after bifurcation of the Courts, is not tenable. ( 11 ) FURTHERMORE, if the above contention of the learned Counsel for the petitioner, assuming arguendo, could be sustained, it would have been a case of procedural irregularity. The Code is a Code of Procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. If there be substantial compliance with the requirement of law providing the accused a full and fair trial in accordance with the principles of natural justice, no order of a competent Court should be reversed or altered in appeal or revision on account of a procedural irregularity unless the same results in miscarriage of justice. Mere inconsequential error is regarded as venal by the Code and the order is not vitiated unless the accused can show substantial prejudice. Such irregularity is cured under the provision of section 465, Cr. P. C. Reference may be made to the cases of /. /. Sodawala v. State of Maharashtra, AIR 1974 SC 1880 and Slaney v. State of M. P. , air 1956 SC 116 . In order to nullify a proceeding or trial the prejudice to the accused must be such as to cause a failure of justice. In judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to the technicalities and their main concern should be to see whether the accused had a fair trial and whether he was given a full and fair chance to defend himself. Reference may be made to the case of Gurbachan reported in AIR 1957 SC 623 . Here, the question of prejudice to the accused or miscarriage of justice in the above facts and circumstance is out of the way. So, on this ground also, the claim of the petitioner does hot stand. ( 12 ) AS regards merit, Mr. Reference may be made to the case of Gurbachan reported in AIR 1957 SC 623 . Here, the question of prejudice to the accused or miscarriage of justice in the above facts and circumstance is out of the way. So, on this ground also, the claim of the petitioner does hot stand. ( 12 ) AS regards merit, Mr. Basu on referring to the radiological test report to the effect that the accused was about 22 years and below 25 years but more towards 25 years on the date of radiological examination on 21. 7. 2005 contended that the learned Judge ought to have taken into consideration 22 years as the bottom line but instead he took the maximum age of 25 years as a yardstick being totally oblivious that in criminal trial the view which goes in favour of the accused should be taken into consideration and as such the holding of the learned Court below that the petitioner was not a juvenile on the date of incident is liable to be set aside. Mr. Goswami, learned Public Prosecutor, in his usual fairness submitted that if the ossification test is accepted is correct, then the petitioner was undoubtedly a juvenile on the date of incident. ( 13 ) THE learned Judge rightly did not rely upon the tabulation register for Madhyamik External Examination, 2001 (Ext. A) as also application form filed in the school for the purpose of appearing as an external candidate of the said examination, 2001 (Ext. B) in the absence of materials showing the basis for recording the date of birth in the said register and application form. Similarly, the xerox copy of the purported birth certificate registered at some place in Bihar was also rightly not relied upon by the learned Judge. ( 14 ) AS regards ossification test report (Ext. 1), the accused was found to be above 22 years but below 25 years but more towards 25 years of age on the date of radiological examination on 21. 7. 2005. It is well settled that the view which goes in favour of the accused should be adopted. ( 15 ) OPINION of Radiologist is comparatively surer but not conclusive. According to Modi's Medical Jurisprudence and Toxicology (20th edition, 1977, page 32), which is generally accepted as an authoritative book on the subject, the margin of error can be three years on either way. ( 15 ) OPINION of Radiologist is comparatively surer but not conclusive. According to Modi's Medical Jurisprudence and Toxicology (20th edition, 1977, page 32), which is generally accepted as an authoritative book on the subject, the margin of error can be three years on either way. Variation of 2 to 3 years on either side is permissible which was accepted in the case of rajinder Chandra v. State of Chhatrisgarh, reported in 2002 SCC (Cr) 333 : 2002 C Cr LR (SC) 344. In Jaya Mala v. Home Secretary, Govt. of J and K. , reported in AIR 1982 SC 1297 such variation on either side was considered to be two years. The benefit of margin of error goes in favour of the accused. ( 16 ) HAVING regard to the above decisions and taking the margin of error as two years on either way, the accused/petitioner appears to be aged about 20 years on the date of radiological examination on 21. 7. 2005. If that be so, on the date of incident on 26. 3. 2001. he was aged about 15 years 8 months and as such was a juvenile within the meaning of Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 as he was less then 18 years on that date. ( 17 ) ACCORDINGLY, the holding that the petitioner was aged about 19 years on the date of the incident, as made in the enquiry report submitted by the learned Additional District and Sessions Judge, 9th Fast Track Court, bichar Bhavan, Calcutta being not acceptable is liable to be set aside. As such, the present revisional application be allowed.