TMI Blog2001 (5) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon to direct the accused convict to be immediately taken into custody, if he is on bail, and kept in jail till such time the question of sentence is decided. After the sentence is awarded, the convict is to undergo such sentence unless the operation of the sentence awarded is stayed or suspended by a competent court of jurisdiction. Such a course is necessitated under the present circumstances prevalent in the country and is in consonance with the spirit of law. A person granted bail has no right to insist to remain at liberty on the basis of the orders passed in his favour prior to his conviction. Upon consideration of all relevant circumstances and in view of the settled position of law, I have no doubt in my mind that the present Review Petition is without merit, the grounds mentioned therein have been concocted and carved out for escaping the rigours of law and the sentence imposed upon the accused by well considered judgments of the trial court, High Court and this Court. The review petition is accordingly dismissed. - Review Petition (crl.) 1105 of 2000 - - - Dated:- 10-5-2001 - THOMAS K.T. , SETHI, R.P. AND PHUKAN, S.N., JJ. JUDGMENT: SETHI,J. Equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court considered the scope of review and the limitations imposed on its exercise under Article 137 of the Constitution of India in Lily Thomas v. Union of India Ors. [JT 2000 (5) SC 617] and held: The dictionary meaning of the word review is the act of looking, offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi Ors. Vs. Pradyunmansinghji Arjunsinghji [AIR (1970) SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard. Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, for any other sufficient reason in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CR 935. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the ground specified in Order 47 Rule 1 of the Code of Civil Procedure which provides: Application for review of judgment -(1) Any person considering himself aggrieved - (a) by a decree or order from which an appeal is allowed, but from which, no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal rights guaranteed to the appellant therein. It was further found that the impugned directions had been issued without observing the principle of audi alteram partem. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment. In the instant case, the review is sought on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegedly being on the borders of the age contemplated under the Act for the purposes of awarding him the alternative sentence of imprisonment for life. A perusal of the record shows that during the investigation, inquiry and trial, though represented by Senior Counsel, no plea was ever raised regarding the petitioner being juvenile and the case being governed by the provisions of the Act. Only at the time of arguments, plea regarding the accused being Juvenile was raised on the basis of defence evidence and the statement of Dr.B.C. Roy Medhi. However, such evidence appears to have been brought on record for the purposes of avoiding the death sentence and not for the applicability of the Act. Even in his application for grant of bail under Section 437 of the Code, the petitioner had not raised the plea of being under the age of 16 years entitling him bail under the first proviso to Sub-section (1) of Section 437 of the Code. Neither in his confessional statement, recorded by the Magistrate, nor in the memo of appeal filed in the High Court, such plea was ever raised. The Act has been enacted to provide for the care, protection, treatment, development and rehabilitation of neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Courts. Section 26 specifies the courts by which various offences are triable. Section 27 deals with the jurisdiction of the criminal courts in case of juvenile. It provides that when any offence not punishable with death or imprisonment for life, committed by any person, who, at the date when he appears or is brought before the court is under the age of sixteen years, such accused can be tried by the court of Chief Judicial Magistrate or by any court specially empowered under the Children Act or any other law for the time being in force providing for the treatment, training or rehabilitation of the youthful offenders. The Act was enacted in the year 1986, without incorporating any amendment in Section 27 of the Code. A harmonious reading of the Act, particularly Section 8 and Section 27 of the Code would lead us to hold that whenever any delinquent juvenile, accused of an offence, irrespective of the punishment imposable by law, is produced before a Magistrate or a court, such Magistrate or the court, after it is brought to its notice or is observed by the Magistrate or the court itself that the accused produced before it was under the age of 16 years, shall refer the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate and thereafter tried by the Sessions court and that he ought to have been dealt with only by the court of Juveniles. When it is not the case of the respondent that he was a child both before the committal court as well as before the trial court, it is very surprising that the High Court, based merely on the entry made in Section 313 statement mentioning the age of the respondent as 17 has concluded that the respondent was a child within the definition of the Act on the date of the occurrence though there was no other material for that conclusion. This observation of the High Court, in our considered view, cannot be sustained either in law or on facts. Hence, we set aside that finding of the High Court that the respondent was a child . On the contrary, in the instant case, the Supervision Notes (dated 9.3.1992 to 12.3.1992) of Shri NM APS Additional Superintendent of Police, Morigaon, Assam, who was supervising the investigation, noted Ram Deo Chauhan accused to be of about 20 years of age. In the confessional statement of the accused recorded on 27th March, 1992 his age is mentioned as 20 years. Such age appears to have been either disclosed by the accused himself or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound for holding that the accused was minor at the time of occurrence. Failure of the High Court to return a positive finding on the subject with regard to the age of the accused has necessitated the examination of whole evidence by us even at this stage of the proceedings. I am also satisfied that the petitioner was not a juvenile within the meaning of the Act nor did he seriously claim to be a juvenile for the purposes of getting the benefit of Section 22 of the Act. The Judgment of the trial court and the High Court cannot be assailed on the ground of having been passed in violation of the mandate of law. Despite holding that neither the petitioner was juvenile nor the provisions of the Act were applicable in the case,@@ we examined this matter from another angle, i.e., to find@@ out as to whether the petitioner was near or about the age of a juvenile for the purposes of ascertaining as to whether the death sentence can be substituted by imprisonment for life. We are of the considered opinion that the technicalities of law cannot come in the way of dispensing justice in a case where the accused is likely to be given the extreme penalty imposable under law. In deference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side. In the case in our hand, CW 1 Dr. Bhusan Cahndra Roy Medhi categorically stated that the age of the accused cannot be below 20 years, but it can exceed by one year. If we apply the variation of margin of 2 years on lower side, the accused must be eighteen years at present. If he is eighteen years at present, at the time of alleged occurrence he must be twelve years of age which is absolutely impossible because according to evidence adduced by the defence his age was above fifteen years at the time of alleged occurrence. If we apply the variation of margin of two years on the other side, accused may be twenty three years at present. Then the accused cannot be below sixteen years of age at the time of alleged occurrence to attract the provisions of Juvenile Justice Act, 1986 as the alleged occurrence took place before six years. DW Satya Narayan Yadav exhibited the school admission register and the relevant entry. But it seems that the entry in the school admission register is based on a transfer certificate issued by another school. As such, Mailoo Hindi School is not the first school where the accused first got admitted. Furthermore, from the cross examination, it appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e school certificate must be related to the accused and the entries therein must be correct in their particulars. There is no dispute that the school certificate relates to the accused, but entries therein cannot be said to be correct in view of the evidence of DW 2, the headmaster of Mailoo Hindi High School and the admission of DW 1, the father of the accused in his cross examination. The prosecution also adduced evidence regarding the age of the accused. PW 4 Rani Kanta Das stated in his deposition that when he first met the accused in the house of his younger brother in the month of November, 1991 he asked him about his address, father s name and also his age. He stated to him that he was 20 years of age. According to PW 4, he seems to be a grown up boy aged about 20 years at that time. But that portion of the evidence was not challenged by defence while cross examining PW 4. In my view, this controversy of age is the outcome of after thought when it was seen that prosecution almost succeeded in establishing the case against the accused. As per Ext. 25, the accused Ramdeo Chauhan alias Rajnath Chauhan stated before I/O that he was 20 years of age when his statement was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.12 again in the entries with effect from 9.1.1992, the ages of the students are mentioned and not their dates of birth. The manner in which the register has been maintained does not inspire confidence of the court to put any reliance on it. Learned defence counsel has also not referred to any provision of law for accepting its authenticity in terms of Section 35 of Evidence Act. The entries made in such a register cannot be taken as a proof of age of the accused for any purpose. Referring to the testimony of Dr.Bhushan Chandra Roy Medhi, CW1, the learned counsel for the accused has tried to@@ make out a mountain out of mole. It appears that as per the@@ direction of the court dated 20th December, 1997, the petitioner accused was examined by a Board of doctors to ascertain his age. In their report Exhibit C dated 23.12.1997 the Board opined on the basis of physical examination and radiological investigation of Sh.Raj Nath Chauhan @ Ram Deo Chauhan, we are of the opinion that the age of the individual at present is above (20) years If the accused was of atleast 20 years of age on 23.12.1997, his date of birth can be held to be near or about 23rd December, 1977. In that wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an accused. In this vast country with varied latitude, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform. From the evidence produced and the material placed before the courts below, there is not an iota of doubt in my mind to hold that the petitioner was a child or near or about the age of being a child within the meaning of the Juvenile Justice Act or the Children Act. He is proved to be major at the time of the commission of the offence. No doubt, much less a reasonable doubt is created in the mind of the Court, for the accused entitling him the benefit of a lesser punishment. It is true that the accused tried to create a smoke screen with respect to his age but such efforts appear to have been made only to hide his real age and not to create any doubt in our mind. The judicial system cannot be allowed to be taken to ransom by having resort to imaginative and concocted grounds by taking advantage of loose sentences appearing in the evidence of some of the witnesses, particularly at the stage of special leave petition. The law insists for finality of judgments and is more concerned with the strengthening of the judicial system ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence or aggravating grounds to impose death penalty. It was further observed that sufficient time must be given to the accused or the prosecution on the question of sentence, to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded as the case may be. It was further observed that the sentence awarded on the same day of finding guilt was not in accordance with law. In both the aforesaid judgments the amendment made in Section 309 of the Code was not taken note of. By Criminal@@ Procedure Code Amendment Act, 1978, a proviso was added to@@ sub-section (2) of Section 309 to the effect that Provided also that no adjournment would be granted for the purposes only of accepting the accused person to show cause against the sentence proposed to be imposed upon him . In Sukhdev Singh s case (supra) this Court while dealing with Section 309(2), third proviso and Section 235(2) of the Code and after referring to its earlier decisions in Allauddin Mian Ors. v. State of Bihar[1989 (3) SCC 5] and Malkiat Singh s case, (supra) held: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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