Published on: 20 March 2023 at 11:49 IST
While not leaving even a scintilla of doubt on the key question of the limitations of the revisional powers of the Courts, the Jammu and Kashmir and Ladakh High Court in a learned, laudable, landmark and latest judgment titled Master X th. Shah Wali Vs State of J&K and another in Crl.A(S) No. 2/2022 that was reserved on February 28 and then finally pronounced on March 10, 2023 has made it clear that a Sessions Court or a Children’s Court cannot entertain a revision petition against the order of Juvenile Justice Board.
The Single Judge Bench of Hon’ble Mr Justice Sanjay Dhar observed that the power of revision under Section 102 of the Juvenile Justice Act is vested with the High Court alone.
The Bench also stated clearly that, “No such power is vested with the Court of Sessions or Children’s Court.”
At the very outset, this extremely remarkable, robust, rational, righteous and recent judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Sanjay Dhar of Jammu and Kashmir and Ladakh High Court at Jammu sets the ball in motion by first and foremost putting forth in para 1 that, “The appellant has filed the instant appeal under Section 101 (5) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter to be referred as the JJ Act) challenging order dated 17.03.2022 passed by learned Principal Sessions Judge, Samba, whereby the learned Sessions Judge has after entertaining a revision petition against order of the Juvenile Justice Board, Samba granting bail to the appellant, set aside the said order.”
To put things in perspective, the Bench while dwelling on the facts of the case envisages in para 2 that, “It appears that on 12.01.2021 at about 6. AM, while the victim lady aged about 65 years was walking on the road side, she was overpowered by three accused persons and was raped by them one after the other. Accordingly, FIR No. 08/2021 for offences under Sections 376-D, 366, 506, 323 and 212 IPC was registered with the Police Station, Vijaypur and the investigation was set into motion,”.
“After conducting the investigation, the aforesaid offences were found established against accused, Mohd. Anwar, Showkat Ali, Mohd Din, Mushtaq Ahmad, Fareed Ahmad and the petitioner herein. Charge sheet against the adult accused was laid before the Principal Sessions Judge, Samba, whereas supplementary charge sheet against the petitioner, who happens to be a juvenile, was laid before the Juvenile Justice Board, Samba.”
While continuing in the same vein, the Bench then discloses in para 3 mentioning that, “It appears that the petitioner herein filed an application for grant of bail before the Juvenile Justice Board, Samba and he was granted interim bail in terms of order dated 10.03.2021 passed by the Juvenile Justice Board and the said interim bail was made absolute on 22.03.2021,”.
“It is pertinent to mention here that the respondents had moved an application for cancellation of the bail before the Juvenile Justice Board, Samba and the said application was also dismissed by the Juvenile Justice Board in terms of the order dated 22.03.2021. Both the aforesaid orders came to be challenged by the respondent by way of a revision petition before the learned Principal Sessions Judge, Samba (Children’s Court) and vide the impugned order, the petition was allowed and the orders passed by the Juvenile Justice Board, Samba were set aside.”
As it turned out, the Bench then points out in para 4 that, “The petitioner has challenged the impugned order primarily on the ground that the Principal Sessions Judge, Samba, while exercising the powers of the Children’s Court or of a Sessions Judge did not possess the power of revision in terms of the provisions contained in the Juvenile Justice Act and as such, the impugned order passed by the learned Principal Sessions Judge, Samba is without any jurisdiction,”.
“It has further been contended that the learned Principal Sessions Judge, Samba has set aside the order of the Juvenile Justice Board without assigning any reasons.”
Quite significantly, the Bench propounds in para 11 that, “From a perusal of the afore noted provisions, it is clear that any person aggrieved of the order of the Juvenile Justice Board made under the Act has a right to prefer an appeal before the Children’s Court within a period of thirty days,”.
“It further provides that no such appeal lies from the order of Court of Sessions passed in an appeal. Sub Section (5) quoted above, provides that any person aggrieved by an order of the Children’s Court has right to file appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973,”.
“Children’s Court as per Section 2(20) of the JJ Act means a Court established under the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the POCSO Act 2002. In the absence of these special Courts, it means the Court of Sessions having the jurisdiction.”
Most significantly, the Bench then mandates in para 12 holding that, “The revisional powers in terms of Section 102 of the JJ Act have been vested with the High Court and no such power is vested with the Court of Sessions or Children’s Court,”.
“As already noted that Section 1(4) of JJ Act gives an overriding effect to the provisions contained in said Act. Besides this, Section 5 of the Cr. P.C. provides that nothing in the Code can affect any special or local law or any special jurisdiction or power conferred by any other law in the absence of the provision to the contrary, meaning thereby that the provisions of the Code of Criminal Procedure would not apply to a matter which is covered by provisions contained in the JJ Act.”
Adding more to it, the Bench then further enunciates in para 13 that, “As already noted, the power of revision has been vested with the High Court in terms of Section 102 of the JJ Act. The Court of Sessions or the Children’s Court has not been vested with such powers under the said Act,”.
“Thus, the applicability of provision relating to the revision i.e. Section 397 of Cr.P.C. has been ousted by Section 1 (4) of JJ Act, read with Section 5 Cr.P.C. because the matters relating to the revision are provided for in the JJ Act, which is a special legislation.”
As a corollary, the Bench then minces just no words to hold most rightly in para 14 that, “In view of the above, the learned Sessions Judge either in her capacity as Sessions Court or in her capacity as Children’s Court has grossly fallen into an error by entertaining a revision petition against the order of the Juvenile Justice Board,”.
“Although, in the title of the impugned “revision/appeal” has been mentioned, yet the petition before the Session Judge has been registered as a revision petition and the learned Sessions Judge has treated it as a revision petition which is clear from the reference to the provisions contained in Section 397 of Cr.PC. in the impugned order,”.
“In fact, it has been specifically stated in the impugned order that revision petition is allowed. This clearly goes on to show that the learned Sessions Judge has, while passing the impugned order, exercised its revisional jurisdiction, which was not vested with her in terms of the provisions of the JJ Act. In view of the overriding effect of the provision of the JJ Act, the learned Sessions Judge could not have invoked the provisions of Cr.P.C. to exercise revisional powers. The impugned order being without jurisdiction, is liable to be set aside on this ground alone.”
Most forthrightly, the Bench then further expounds in para 15 stating that, “It has been contended by the learned counsel for the respondents that in the instant case, the learned Sessions Judge has, in her capacity as Children’s Court, exercised appellate jurisdiction in terms of Section 101 of the JJ Act,”.
“The argument appears to be misconceived because the order impugned cannot be termed to have been passed in exercise of the appellate jurisdiction as the limitation for filing appeal against the order passed by the Juvenile Justice Board is 30 days and unless this period is extended by the appellate court, the appeal cannot be entertained,”.
“In the impugned order, it is no where mentioned that the delay in filing of the appeal has been condoned, when admittedly the order of the Juvenile Justice Board had been called into question after the expiry of 30 days,”.
“This clearly goes on to show that the learned Sessions Judge has entertained the petition as a revision petition and not as an appeal. Therefore, the contention of the learned counsel for the respondents that because the learned Sessions Judge has exercised the appellate jurisdiction, as such, the instant appeal is not maintainable because it amounts to second appeal against the order of Sessions Judge, is without any merit.”
Most rationally, the Bench then holds in para 16 that, “Apart from the above, if we have a look at the impugned order passed by the learned Sessions Judge, no reasoning much less a sound reasoning has been given by her for setting aside the order of the Juvenile Justice Board. Merely repeating the contentions of the parties and quoting the case law and the provisions of law, does not make an order well reasoned,”.
“While passing a judgment, a Court is expected to apply the statutes and precedents to the facts of that particular case and record a brief discussion in the judgment in this behalf. The learned Sessions Judge has not recorded any ground for coming to the conclusion that the order of the Board is not in accordance with law. Even though, the impugned order is running into twelve pages, but it is devoid of any reasons. Such an order cannot be sustained in the eyes of law.”
Finally, the Bench concludes by holding in para 17 that, “For the foregoing reasons, the petition is allowed and the impugned order dated 17.03.2022 passed by learned Principal Sessions Judge, Samba is set aside and the petitioner is directed to be released on bail in accordance with the directions dated 10.03.2021, read with directions dated 22.03.2021 passed by the Juvenile Justice Board, Samba.”
All told, we thus see that the Jammu and Kashmir and Ladakh High Court at Jammu has made it entirely clear that the revisional powers under Section 102 of the Juvenile Justice Act is vested with the High Court and so it cannot be exercised by Session’s Court/Children’s Court.
It is a no-brainer that the petitioner is very rightly released on bail by the High Court for reasons as we have discussed quite in detail hereinabove.