Himachal Pradesh High Court: Tarlok Singh Chauhan, J. allowed a criminal revision petition filed by the State assailing the Judgment passed by Principal Magistrate whereby a juvenile was acquitted, holding the said order to be Coram non-judis.
The case was instituted on 28-09-2010 when the Juvenile Justice Act, 2000 was in operation; Section 4(2) whereof states that “A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be, and two social workers of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973, on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class and the Magistrate on the Board shall be designated as the Principal Magistrate.”
Further, Section 5(3) of the JJ Act states “A Board may act notwithstanding the absence of any member of the Board, and no order made by the Board shall be invalid by reason only of the absence of any member during any stage of proceedings: Provided that there shall be at least two members including the principal Magistrate present at the time of final disposal of the case.”
The Court noted that while the JJ Act was amended in the year 2015, no changes were made with regard to the composition mentioned in Section 4(2) of the JJ Act, 2000. Reliance was placed on the judgment in Hasham Abbas Sayyad v. Usman Abbas Sayyad, (2007) 2 SCC 355, where it was held that an order passed by a magistrate beyond his jurisdiction would be considered void ab initio. It was opined that “where a Court takes upon itself to exercise a jurisdiction it has not possessed its decision amounts to nothing”.
Since in the present case, the impugned order was passed by the Magistrate sitting singly, and without fulfilling the criteria of composition required for functioning of the Juvenile Justice Board (JJ Board), therefore the impugned order was set aside and the case was remanded to JJ Board for deciding the case afresh in accordance with law after hearing both the parties.[State of Himachal Pradesh v. Happy, 2019 SCC OnLine HP 700, decided on 28-05-2019]
