CR.R/414/2018 of STATE OF HP Vs RANJEET SINGH on 31 December 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr. Revision No. 414 of 2018

Date of decision: 31st December, 2018.

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State of Himachal Pradesh Ranjeet Singh

…Petitioner.

Versus

…Respondent.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting? No.

For the Petitioner: Mr. Vinod Thakur, Addl. A.G. with Mr. Bhupinder Thakur, Dy. A.G. and Mr. RamLal Thakur, Asstt. A.G.

For the Respondent:Mr. Dhiraj Thakur, Advocate.

Tarlok Singh Chauhan, Judge (Oral)

The order impugned herein has been passed only by thePrincipal Magistrate, Juvenile Justice Board, Bilaspur, H.P. and not bythe Board as contemplated under the Juvenile Justice (Care andProtection of Children) Act, 2000 and is, therefore, coram non judis asalready held by this Court in Criminal Revision No. 303 of 2017,wherein it was held as follows:- “2. Even though the judgment has been assailed on merits, however,the moot question is as to whether the Principal Magistrate whilesitting singly could have finally decided/disposed of the case. Thecase was instituted on 11.06.2009 when the Juvenile Justice (Careand Protection of Children) Act, 2000 (for short ‘Act of 2000’) was inoperation.

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Whether reporters of Local Papers may be allowed to see the Judgment ? yes

3. Section 2 (c) defines Board in the following terms:

“(c) “Board” means a Juvenile Justice Board constituted under Section 4.”

4. Section 2(l) of the Act of 2000 reads thus:

“juvenile in conflict with law” means a juvenile who is alleged to havecommitted an offence and has not completed eighteenth year of age ason the date of commission of such offence.”

5. Only sub-section (2) of Section 4 is relevant for the determination ofthe instant lis and reads thus:

“(2). A Board shall consist of a Metropolitan Magistrate or a JudicialMagistrate of the first class, as the case may be, and two social workersof whom at least one shall be a woman, forming a Bench and everysuch Bench shall have the powers conferred by the Code of CriminalProcedure, 1973, on a Metropolitan Magistrate or, as the case may be, aJudicial Magistrate of the first class and the Magistrate on the Boardshall be designated as the Principal Magistrate.”

6. Thus, it is clear that a Juvenile Justice Board is to be threemembers Board consisting of a Metropolitan Magistrate or a JudicialMagistrate of the first class, as the case may be, and two socialworkers of whom at least one shall be a woman, forming a Bench andevery such Bench have been vested with the powers conferred bythe Code of Criminal Procedure, on a Metropolitan Magistrate or, asthe case may be, or a Judicial Magistrate of the first class and theMagistrate on the Board is to be designated as the PrincipalMagistrate.

7. As regards the procedure etc. to be followed by the Board, thesame is provided in Section 5 and sub section (3) thereof reads asunder:

“3”. A Board may act notwithstanding the absence of any member of theBoard, and no order made by the Board shall be invalid by reason onlyof the absence of any member during any stage of proceedings:Provided that there shall be at least two members including theprincipal Magistrate present at the time of final disposal of the case.”

8. It is not in dispute that the case was decided at the time when theAct of 2000 was repealed and the Juvenile Justice (Care andProtection of Children) Act, 2015 (for short Act of 2015) had comeinto force.

9. It would be noticed that even under this Act, the Board has beendefined in Section 2 (10) in the following terms:“(10). “Board” means a Juvenile Justice Board constituted under Section4.”

10. Section 2 (13) of the Act of 2015, reads thus:

“child in conflict with law” means a child who is alleged or found to havecommitted an offence and who has not completed eighteen years of ageon the date of commission of such offence.

11. It would further be noticed that even though there are somechanges in the qualifications of the Members of the Board. However,the composition remains the same and such Board is to comprise ofthree Members as provided in sub-section (2) of Section 4, whichreads thus:

“(2). A Board shall consist of a Metropolitan Magistrate or a JudicialMagistrate of First Class not being Chief Metropolitan Magistrate orChief Judicial Magistrate (hereinafter referred to as Principal Magistrate)with at least three years experience and two social workers selected insuch manner as may be prescribed, of whom at least one shall be awoman, forming a Bench and every such Bench shall have the powersconferred by the Code of Criminal Procedure, 1973, on a MetropolitanMagistrate or, as the case may be, a Judicial Magistrate of First Class.”

12. Likewise, the procedure in relation to the Board has beenprovided under Section 7 of the Act of 2015 and sub section (3)whereof is pari-materia with sub section (3) of Section 5 of the Act of2000 and reads thus:

“(3). A Board may act notwithstanding the absence of any member ofthe Board, and no order passed by the Board shall be invalid by thereason only of the absence of any member during any stage ofproceedings:

PROVIDED that there shall be atleast two members includingthe Principal Magistrate present at the time of final disposal of thecase or in making an order under sub-section (3) of Section 18.”

13. At this stage, the Court is not going into the thicket of thecontroversy as to which of the Acts would govern the proceedings.However, in view of the legal provisions extracted above, it isabundantly clear that under both the Acts, the cases of “juvenile inconflict with law” and “child in conflict with law”, as the case may be,can be disposed of finally only by at least two members including thePrincipal Magistrate present at the time of disposal of such case. Noindividual Member including the Principal Magistrate and no twoMembers excluding the Principal Magistrate can finally dispose of thecase.

14. The Principal Magistrate could not have finally disposed of thecase in contravention of the provisions of the Act(s) supra and,therefore, the order passed by it is coram non judis and being nullity isvoid, ab initio.

15. It is well settled and needs no authority that “where a Court takesupon itself to exercise a jurisdiction it has not possessedits decisionamounts to nothing”. Consequently, any order passed by the Courthaving no jurisdiction is non est and its invalidity can be set up when itis sought to be enforced or is acted upon as a foundation for a right,even at the stage of execution or in collateral proceedings. Any orderpassed by such authority is coram non judis.

16. This aspect of the matter has been considered by the Hon’bleSupreme Court in Hasham Abbas Sayyad vs. Usman AbbasSayyad and others, AIR 2007 (SC) 1077, wherein it was held asunder:

“[21] The core question is as to whether an order passed by a personlacking inherent jurisdiction would be a nullity. It will be so. The principlesof estoppel, waiver and acquiescence or even res judicata which areprocedural in nature would have no application in a case where an orderhas been passed by the Tribunal/Court which has no authority in thatbehalf. Any order passed by a court without jurisdiction would be coram

non judice being a nullity, the same ordinarily should not be given effectto.

[22] This aspect of the matter has recently been considered by this Courtin Harshad Chiman Lal Modi V/s. DLF Universal Ltd. and Another, 2005 7SCC 791, in the following terms :

"We are unable to uphold the contention. The jurisdiction of acourt may be classified into several categories. The importantcategories are (i) Territorial or local jurisdiction; (ii) Pecuniaryjurisdiction; and (iii) Jurisdiction over the subject matter. So far asterritorial and pecuniary jurisdictions are concerned, objection tosuch jurisdiction has to be taken at the earliest possibleopportunity and in any case at or before settlement of issues.The law is well settled on the point that if such objection is nottaken at the earliest, it cannot be allowed to be taken at asubsequent stage. Jurisdiction as to subject matter, however, istotally distinct and stands on a different footing. Where a courthas no jurisdiction over the subject matter of the suit by reasonof any limitation imposed by statute, charter or commission, itcannot take up the cause or matter. An order passed by a courthaving no jurisdiction is nullity."

See also Zila Sahakari Kendrya Bank Maryadit v. Shahjadi Begum &Ors., 2006 (9) SCALE 675 and Shahbad Co-op.Sugar Mills Ltd. v. SpecialSecretary to Govt. of Haryana & Ors. 2006 (11) SCALE 674 para 29]

[23] We may, however hasten to add that a distinction must be madebetween a decree passed by a court which has no territorial or pecuniaryjurisdiction in the light of Sec. 21 of the Code of Civil Procedure; and adecree passed by a court having no jurisdiction in regard to the subjectmatter of the suit. Whereas in the former case, the appellate court maynot interfere with the decree unless prejudice is shown, ordinarily thesecond category of the cases would be interfered with.”

2. Consequently, the Criminal Revision is allowed and theimpugned order passed by the Principal Magistrate, Juvenile JusticeBoard, Bilaspur on 23.09.2017 in Case No.17/2 of 2010/08 is coramnon judis and is accordingly quashed and set aside.

3. The parties are directed to appear before the JuvenileJustice Board, Bilaspur on 14.01.2019. Registry is directed to send therecords of the case back to the concerned Court so as to reach wellbefore the next date of hearing.

4. The appeal is disposed of in the aforesaid terms, leaving the parties to bear their own costs.

31[st] December, 2018. (sanjeev)

(Tarlok Singh Chauhan) Judge