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2015 DIGILAW 98 (ALL)

Lalloo v. State of U. P.

2015-01-15

VISHNU CHANDRA GUPTA

body2015
JUDGMENT Vishnu Chandra Gupta, J. These Criminal Misc. Applications No. 1233 of 2005 and Criminal Misc. Application No. 40699 of 2013 have been moved by the applicant-revisionist in Criminal Revision No. 489 of 1982. 2. The brief and relevant facts for deciding there applications are that in a trial of offence under section 7/16 of PFA Act against the applicant-revisionist a sentenced of rigorous imprisonment of six months and fine of Rs. 1,500/- and in default of payment of fine further sentence of six months was awarded vide order dated 30.07.1982 passed in Criminal Case No. 809 of 1981 by learned Magistrate. Aggrieved by his conviction and sentence the present applicant-revisionist preferred an appeal before learned Sessions Judge, Raebareli having Criminal Appeal No. 173 of 2012 but the appeal was dismissed by 2nd Additional Sessions Judge, Raebareli vide its order dated 17.09.1982. Thereafter the applicant-revisionist filed present criminal revision No. 489 of 1982 before this Court against the orders passed by trial court as well as by appellate Court. This revision was decided by this Court vide judgement dated 11.09.1998. The operative portion of the judgement dated 11.09.1998 is quoted herein below: - "Accordingly all these revisions are disposed of on the following terms: - "The conviction and sentence awarded to the applicants are maintained. However on the applicants depositing the amount of fine within a period of four months from the date of this order and their intimating the appropriate government through the District Magistrates of their districts that such a fine has been deposited, the State Govt. may formulise the matter by passing appropriate orders under clause (e) of Sec. 433 of the Code of Criminal Procedure. Meanwhile till decision by the State Govt. the applicants shall not be arrested.". The operative portion, has been reproduced herein above and the copy of which has been annexed as Annexure No. 3 to the Criminal Misc. Application No. 1233 of 2005." 3. It is not in dispute that this Court in aforesaid revision No.489 of 1982 affirmed the conviction and sentence awarded to the applicant-revisionist on 11.09.1998 under Section 7/16 of PFA Act 4. In pursuance of the aforesaid order the present revisionist moved a representation to the State Government, which was rejected vide communication dated 16.11.2004 (Annexure No. 4 to the Criminal Misc. In pursuance of the aforesaid order the present revisionist moved a representation to the State Government, which was rejected vide communication dated 16.11.2004 (Annexure No. 4 to the Criminal Misc. Application No. 1233 of 2005) whereby the State Government declined to remit the sentence of six months rigorous imprisonment awarded by the trial Court and affirmed by appellate Court. 5. Thereafter Criminal Misc. Application No. 1233 of 2005 has been moved by the applicant-revisionist before this Court with the prayer to recall the order passed by this Court on 11.09.1998 and to decided the criminal revision on merit after giving opportunity of being heard. 6. During the course of pendency of the aforesaid application, the applicant-revisionist to claim the benefit of Section 20 (AA) of the Prevention of Food Adulteration Act (hereinafter referred to as 'PFA Act'), filed a supplementary affidavit on 18.03.2013 annexing therewith copy of the school leaving certificate of the revisionist showing his date of birth as 05.07.1966. 7. On 25.04.2013 another Criminal Misc. Application No. 40699 of 2013 has been moved under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'JJAct') read with Section 482 Cr.P.C. with the prayer that this Court after conducting an inquiry declare the applicant-revisionist as juvenile and the sentence awarded to him be set-aside. 8. I have heard Shri Arun Sinha, learned counsel for the applicant-revisionist and Sri Izhar Husain, AGA for the State. 9. Learned counsel for the applicant-revisionist submitted that in view of Section 20 read with Section 7A of JJ Act, the plea of juvenility can be taken at any stage before any Court, hence this Court can not decline to consider the request made in the application under Section 7A of JJ Act to declare the revisionist as juvenile. Moreover in view of Section 20 (AA) of PFA Act, the applicant-revisionist can not be sentenced with sentence of imprisonment even if the sentence awarded to the applicant-revisionist is affirmed by this Court in revision and the same could be set-aside in the present proceeding. 10. Learned A.G.A. on the contrary, submitted that the present Application No. 1233 of 2005 as well as application under Section 7A of JJ Act read with Section 482 Cr.P.C. are not maintainable and are liable to be dismissed. It was further submitted that Section 20 of JJ Act will apply in this case. 11. 10. Learned A.G.A. on the contrary, submitted that the present Application No. 1233 of 2005 as well as application under Section 7A of JJ Act read with Section 482 Cr.P.C. are not maintainable and are liable to be dismissed. It was further submitted that Section 20 of JJ Act will apply in this case. 11. So far as the Criminal Misc. Application No. 1233 of 2005 is concerned, learned A.G.A. has drawn the attention of this Court to para 1 of the judgement of dated 11.09.1998 delivered by this Court, which reads as under: - "This revision and connected revisions arise against the orders of conviction and sentence imposed on the applicants u/ss. 7/16 of the Prevention of Food Adulteration Act. All these revisions were filed in the High Court long back and to be specific they are of the years 1982, 1983, 1984 and 1985. In all these revisions it has been contended that the applicants do not want to challenge the finding of conviction but want that the sentence of imprisonment for jail term be waived and the sentence awarded to the applicants should be modified to the period of imprisonment already undergone coupled with the fine which has been imposed on them." 12. On the basis of it he urged that once applicant-revisionist chose not to challenge the finding of conviction on merit and chose only to challenge the sentence awarded after conviction specially for jail term, his application for recall of the order passed in revision and after implementation of the order passed in the revision, can not be entertained, Moreover, Section 362 Cr.P.C. strictly prohibit to recall of the final order in such a situation by any Criminal Court. Criminal Misc. Application No. 1233 of 2005. 13. For deciding the controversy involved in these two applications, first I will take Criminal Misc. Application No. 1233 of 2005. The applicant-revisionist moved this application on 01.02.2005 before this Court after dismissal of his representation under communication to him vide order dated 16.11.2004 with the following prayer: - "WHEREFORE it is prayed that the revision of the revisionist vide Crl. Revision No. 489/82 may be heard and disposed of on merits in accordance with law. Application No. 1233 of 2005. The applicant-revisionist moved this application on 01.02.2005 before this Court after dismissal of his representation under communication to him vide order dated 16.11.2004 with the following prayer: - "WHEREFORE it is prayed that the revision of the revisionist vide Crl. Revision No. 489/82 may be heard and disposed of on merits in accordance with law. It is further prayed that the execution of N.B.W. Issued by C.J.M. After the dismissal of the representation by the Government may be quashed and the same may be stayed during the pendency of this application in this Hon'ble Court. It is further prayed that the revisionist may be acquitted of the charges levelled against him. It is further prayed that the fine already deposited by the revisionist may be returned to him after the revision of the revisionist is allowed by this Hon'ble Court." 14. The prayer shows that the applicant-revisionist wants that he may be acquitted from the charges levelled against him and the fine already deposited be refunded and revision of the revisionist be allowed which clearly indicates that applicant-revisionist wants to get the order recalled and wants rehearing of the matter and further wants that the revision be allowed after setting-aside the sentence awarded to the applicant-revisionist. 15. The question of maintainability of the aforesaid application is the prime question for consideration before this Court. 16. It is not in dispute that when revision was heard, the revisionist did not choose to challenge the finding of conviction recorded against him and he simply claimed modification of sentence, which is in the form of rigorous imprisonment of six months. The revision was finally decided after hearing of the parties. The conviction and sentence was affirmed, which was awarded by the trial Court and confirmed by the Appellate Court. However, the revisional Court gave liberty to the applicant-revisionist to move under Section 433 of the Code of Criminal Procedure for remittance of sentence of imprisonment awarded to him. The revisionist thereafter, in pursuance of the order passed by the revisional Court on 11.09.1998, moved representation, which was dismissed on 16.11.2004 as is evident from Annexure no. 4 to the present application. 17. The revisionist thereafter, in pursuance of the order passed by the revisional Court on 11.09.1998, moved representation, which was dismissed on 16.11.2004 as is evident from Annexure no. 4 to the present application. 17. In such a situation, it is clear that the order, which has been passed by this Court while exercising the powers of revision have become final and the same has also been acted upon by the applicant-revisionist by moving the representation under section 433 Cr.P.C to State Government. Thereafter,he moved the application for reopening of the case once again to hear the case on merit. This prayer of Applicant-revisionist is against the stand, which has been taken at the time of final hearing of the revision as is evidence from para 1 of the judgement of this revisional Court (quoted herein above). 18. In Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169 , at page 174 while dealing with the powers of High Court with regard to recall of final order held as under : "9. There is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code." 19. In Nazma v. Javed, (2013) 1 SCC 376 , at page 380 the Hon'ble Supreme Court taking the ratio propounded in Hari Singh Mann's case (supra) observed as under : 11. The practice of entertaining miscellaneous applications in disposed of writ petitions was deprecated by this Court in Hari Singh Mann (2001) SCC 169. Reference to the following paragraph of that judgment is apposite: (SCC p. 173, para 8) "8. We have noted with disgust that the impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition on 7-1-1999, there was no lis pending in the High Court wherein the respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of the Code of Criminal Procedure or the rules of the court, cannot be resorted to as a substitute of fresh litigation. After the disposal of the main petition on 7-1-1999, there was no lis pending in the High Court wherein the respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of the Code of Criminal Procedure or the rules of the court, cannot be resorted to as a substitute of fresh litigation. The record of the proceedings produced before us shows that directions in the case filed by the respondents were issued apparently without notice to any of the respondents in the petition. Merely because Respondent 1 was an advocate, did not justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30-4-1999 and 21-7-1999 could not have been passed by the High Court under its inherent power under Section 482 of the Code of Criminal Procedure. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the court." 20. As this Court has passed the order sought to be recalled under Section 397 read with Section 401 Cr.P.C., therefore Section 362 Cr.P.C. would come into play with full force in the way of the applicant-revisionist which prohibits that when the Court has signed judgement finally disposing a case, the Court shall not alter or review the same except to correct a clerical or arithmetical error. The remedy in such a situation would be available to revisionist to challenge the order passed by this Court to a superior Court i.e before Hon'ble Supreme Court. The applicant-revisionist is estopped to challenge the order passed by this Court on any ground before the same court,i.e, before this Court. Therefore the application moved by the applicant-revisionist having Criminal Misc. Application No. 1233 of 2005 is wholly misconceived, not maintainable and is liable to be rejected. 21. Hence the same is rejected. Criminal Misc. Application No. 40699 of 2013 22. So far as Criminal Misc. Application No. 40699 of 2013 is concerned, by means of this application, the applicant-revisionist tried to invoke the provisions of Section 20 (AA) of PFA Act with the aid of Section 20 read with section 7A of JJ Act in the present case. 23. Criminal Misc. Application No. 40699 of 2013 22. So far as Criminal Misc. Application No. 40699 of 2013 is concerned, by means of this application, the applicant-revisionist tried to invoke the provisions of Section 20 (AA) of PFA Act with the aid of Section 20 read with section 7A of JJ Act in the present case. 23. The first question for consideration is; whether it is permissible to the applicant-revisionist? And secondly if the applicant-revisionist moved such an application whether the Court is competent to proceed and decide the age of the applicant-revisionist in view of Section 7A of JJ Act? 24. The learned Counsel for the petitioner in the light of section 20 of JJAct,2000, as amended by Act No.33 of 2006, submitted that as the proceedings were pending when section 20 was already in acted, therefore benefit if section 20 shall be extended. 25. The learned AGA on the contrary urged that the application for recall of the order dated 11.8.1998 passed by this court in revision No.489 of 1982 become final as the same has not been challenged before any higher Court and the application moved for recall of application is not legally maintainable so, the benefit of section 20 of JJ Act, 2000 cannot be extended to the applicant-revisionist. 26. To appreciate the submissions of counsel for the parties sec 20 of JJ Act 2000 has to be looked into. Sec 20 and sec 7-A of JJ Act,2000 as amended in 2006 is extracted herein below: - "20. 26. To appreciate the submissions of counsel for the parties sec 20 of JJ Act 2000 has to be looked into. Sec 20 and sec 7-A of JJ Act,2000 as amended in 2006 is extracted herein below: - "20. Special provision in respect of pending cases.--Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence: Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation.--In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed. 7-A. Procedure to be followed when claim of juvenility is raised before any court.--(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2)If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect." 27. The proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen with regard to the applicability of the Juvenile Justice Act, 2000, to cases pending on 1-4-2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved. 28. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of clause (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1-4-2001, when the Juvenile Justice Act, 2000, came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. In fact, Section 20 enables the court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000. 29. Section 7-A makes provision for a claim of juvenility to be raised before any court at any stage, even after final disposal of a case and sets out the procedure which the court is required to adopt, when such claim of juvenility is raised. It provides for an inquiry, taking of evidence as may be necessary (but not affidavit) so as to determine the age of a person and to record a finding whether the person in question is a juvenile or not. 30. The effect of the proviso to Section 7-A introduced by the amending Act makes it clear that the claim of juvenility may be raised before any court which shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in the Act and the Rules made thereunder which includes the definition of "juvenile" in Sections 2(k) and 2(l) of the Act even if the juvenile had ceased to be so on or before the date of commencement of the Act. 31. The said intention of the legislature was reinforced by the amendment effected by the said amending Act to Section 20 by introduction of the proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any court the determination of juvenility of such a juvenile has to be in terms of Section 2(l) even if the juvenile ceases to be so "on or before the date of commencement of this Act" and it was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed. 32. 32. While dealing with application No.1233 this court has already held that the application of recall of the order or revision passed on 11.8.1998 is not maintainable, so it cannot be said that proceedings were pending on the date of commencement of JJ Act 2000. The provisions of section 20 of JJ Act ,2000 read with section 7A are retroactive and cannot be applied to those cases which were already decided finally prior to enactment of JJ Act 2000. The cases which were finally decided prior to the enactment of JJ Act,2000 cannot be allowed to be reopened under the garb of provision of Sec 20 read with section 7A of JJ Act 2000. 33. So far as the provision contained in section 20AA of PFA Act is concern, there is no provision to extend the benefit in concluded matters when the plea of granting benefit has not been taken throughout. Section 20AA is extracted below "20-AA. Application of the Probation of Offenders Act, 1958 and Section 360 of the Code of Criminal Procedure, 1973.--Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958) or Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age." 34. After considering the above legal aspect of the matter the present proceeding i.e. proceeding by way of Application No.1233 of 2005 will not come within the ambit of Section 20 of JJ Act, because the provisions of Section 20 read with Section 7A of JJ Act can not be allowed to invoke in a concluded matters by way of moving an application for recall of the order and for rehearing of the matter which otherwise in accordance with law would not be maintainable. 35. In view of the above, I do not find any force in the submission made by learned counsel for the applicant-revisionist and consequently the application 7A of JJ Act read with Section 482 Cr.P.C. is liable to be rejected and is accordingly rejected.