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2022 DIGILAW 2409 (RAJ)

Chandiram Kumhar v. State Of Rajasthan

2022-09-09

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - By way of present petition filed under section 482 of the Code of Criminal Procedure, 1973, the petitioner has called in question the order dated 21.05.2022, passed by learned Juvenile Justice Board, Bikaner (hereinafter referred to as "the Board") by which his application for re-determi the age of the juvenile 'M' has been rejected. 2. The facts in brief are that pursuant to a complaint filed by the petitioner, alleging sexual assault by the respondent No. 2 (juvenile), the date of birth of the 'M' was determined as 31.10.2003 and considering him to be a minor his case was ordered to be considered under the provisions of the Juvenile Justice Act, 2015 (hereinafter referred to as "the Act of 2015") by a detailed order dated 17.02.2022, passed by the learned Special Judge, Protection Of Children from Sexual Offences Act Cases. 3. Against above order dated 17.02.2022, the petitioner preferred a criminal misc. petition, which was registered as S.B. Criminal Misc. Petition No. 1202/2022 and the same came to be rejected by this Court vide order dated 16.03.2022. 4. The petitioner claims to have obtained copies of the scholar register and other documents including a Transfer certificate of 'M', issued by the Principal of the School, in which his date of birth has been mentioned as 31.10.2001. 5. On receiving said documents, the petitioner moved an application dated 13.04.2022 and requested the Board (where the juvenile was being tried) to determine the age of 'M' in light of such documents. 6. The Board rejected petitioner's application, inter-alia, observing that the order passed by the POSCO Court dated 17.02.2022 has been affirmed by the High Court and there is no provision under which the determination of age by POCSO Court can be reviewed or reconsidered by the Board. 7. Impugning the order dated 21.05.2022, passed by the Board, Mr. Shreekant Verma, learned counsel for the petitioner argued that the Board has committed an error of law in rejecting petitioner's application in spite of the fact that there was enough documentary evidence to show that the correct date of birth of 'M' is 31.10.2001. 8. 7. Impugning the order dated 21.05.2022, passed by the Board, Mr. Shreekant Verma, learned counsel for the petitioner argued that the Board has committed an error of law in rejecting petitioner's application in spite of the fact that there was enough documentary evidence to show that the correct date of birth of 'M' is 31.10.2001. 8. While taking the Court through the documents that have been placed on record and the statutory provisions, learned counsel for the petitioner argued that the Act of 2015 conveys enough power on the Board or committee to review its own order, particularly under section 104 of the Act of 2015. 9. He argued that as per the provisions of section 94, the scholar certificate and the documents of school are to be given preference over the certificate issued by the Municipality. 10. It was argued that since the age of the juvenile was determined on the basis of the certificate granted by the Municipality and now the documents of school such as copy of the scholar register and Transfer Certificate etc. are available, the order needs to be reviewed. 11. Heard learned counsel for the petitioner; learned Public Prosecutor and perused the material available on record. 12. Before adverting to petitioner's other grounds, it would be apt to examine as to whether the Board or the Court possess the power to review its own order, including the order of determination of age under the powers conferred by section 104 of the Act of 2015, which reads thus:- "104 Power of the Committee or the Board to amend its own orders.-(1) Without prejudice to the provisions for appeal and revision contained in this Act, the Committee or the Board may, on an application received in this behalf, amend any orders passed by itself, as to the institution to which a child is to be sent or as to the person under whose care or supervision a child is to be placed under this Act: Provided that during the course of hearing for amending any such orders, there shall be at least two members of the Board of which one shall be the Principal Magistrate and at least three members of the Committee and all persons concerned, or their authorised representatives, whose views shall be heard by the Committee or the Board, as the case may be, before the said orders are amended. (2) Clerical mistakes in orders passed by the Committee or the Board or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Committee or the Board, as the case may be, either on its own motion or on an application received in this behalf." 13. A cursory reading of section 104 of the Act of 2015 may give an indication that the Board or the committee has a power to amend any order passed by it. But a careful reading of the provision makes it abundantly clear that such power to amend the order is confined to "institution to which a child is to be sent or as to a person under whose care or supervision a child is to be placed under this Act." 14. A complete reading of the provision contained in sub-section (1) of section 104 leaves no manner of doubt that the power to amend is available only in the cases of institution, where the child is to be sent or in relation to a person in whose supervision a child is to be placed. Such power to amend, which is circumscribed qua twin contingencies, cannot be read to convey sweeping power to the Board or to the committee to redetermine the age of a juvenile. 15. What is being sought by the petitioner amounts to review of the order dated 17.02.2022, vide which the age of the accused was determined. 16. It is a settled preposition of law that in absence of specific power of review, a judicial or quasi-judicial order cannot be reviewed. 17. Furthermore, the order dated 17.02.2022 has been affirmed by this Court and, technically merged in the order of the High Court, hence, the learned Board has committed no error in turning down petitioner's application. 18. Having held that the Board does not have power to review, the remaining arguments relating to age of 'M' on the basis of the documents that have been placed subsequently on record need not be dealt with. 19. As an upshot of discussion foregoing, the petition fails. 20. Stay petition also stands dismissed accordingly.