RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL REVISION No.110 of 2008 Mohit Rawat … Revisionist Versus State of Uttarakhand & another … Respondents (2) CRIMINAL REVISION No.112 of 2008 Mohit Rawat … Revisionist Versus State of Uttarakhand & another … Respondents Dated: June 19, 2009 Sri R.P. Nautiyal and Sri Ramji Srivastava, learned counsel for revisionist Sri M.A. Khan, Brief Holder for the State/ Respondent No.1 Km. Prabha Noliyal, Advocate for Respondent No.2. HON. DHARAM VEER, J. Since the revisionist in both these criminal revisions is one and the same and the controversy involved in the matter is also the same, hence, both these revisions are being heard and disposed of by this common judgment and order. 2. Criminal revision No.110 of 2008 has been preferred by the revisionist under Section 53 of The Juvenile Justice [Care & Protection of Children] Act, 2000 (hereinafter to be referred as the Act) against the judgment and order dated 4.6.2008 passed by the Sessions Judge, Dehradun in Criminal Appeal No.23/2008. Likewise, 2 criminal revision no.112/2008 has been preferred against the judgment and order dated 4.6.2008 passed by Sessions Judge, Dehradun in Crl. Appeal No.22/2008. 3. I have heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that revisionist- Mohit Rawat is an accused in Case Crime No.257/07 u/s 147, 307/34 of the Indian Penal Code, 1860 [hereinafter to be referred as the IPC] as well as in Case Crime No.258/ 2007 u/s 25 of the Arms Act, 1959. The mother of the revisionist moved an application for declaring him juvenile. On that application, Chief Judicial Magistrate, Dehradun vide order dated 7.7.2007 declared the revisionist-Mohit Rawat juvenile. After that on 9.7.2007, the revisionist moved an application for his release on bail. On 13.7.2007 the revisionist, being juvenile, was granted bail in both the cases by the Principal Judge, Juvenile Justice Board, Dehradun and was allowed to be given in the Supurdagi of his guardian. Thereafter, an application u/s 437(5) Cr.P.C. was moved by Assistant Prosecuting Officer, Dehradun on behalf of State before the Principal Judge, Juvenile Justice Board, Dehradun stating therein that the applicant- revisionist has obtained the bail on the basis of a false date of birth certificate. The revisionist also filed his objection on that application. On that application, Principal Judge, Juvenile Justice Board, Dehradun vide judgment and order dated 26.5.2008 reached to the conclusion that the bail granted to the revisionist, being a juvenile, was granted on the basis of false facts and evidence adduced by the mother of the revisionist Smt. Hema Rawat and accordingly he cancelled the bail granted to the revisionist on 13.7.2007 in case crime Nos.257/07 under Sections 307/34, 147 IPC and case crime no.258/07 u/s 25 of the Arms Act, 1959. Against the judgment and order dated 26.5.2008 passed by 3 Principal Judge, Juvenile Justice Board, Dehradun, the revisionist preferred two criminal appeals viz. Crl. Appeal No.23/2008 u/s 25 of the Arms Act, 1959 and Crl. Appeal No.22/2008 u/s 307/34 and 147 IPC. Those appeals were decided by learned Sessions Judge, Dehradun per judgment and order dated 4.6.2008 by which the appeals preferred by the revisionist were dismissed and order dated 26.5.2008 was made confirmed. Feeling aggrieved, the revisionist has come up in revision before this Court. 5. Sri Ramji Srivastava, learned counsel for the revisionist has submitted that as per Section 5(3) of the Act, the presence of at least two members including the principal Magistrate is required at the time of final disposal of the case. But in the present case, the impugned order is passed by only one member of Juvenile Justice Board, as such the impugned order is not sustainable. This point was also conceded by Mr. M.A. Khan Brief Holder for the State/Respondent No.1. Sections 4(2) and 5(3) of the Act are essential to mention before any further discussion which read as under: - “4(2) 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 (2 of 1974), 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 princpal Magistrate. 5(3) A Board may act notwithstanding the absence of any member of the Board, and no order by the Board 4 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.” 6. Section 4(2) of the Act provides that Juvenile Justice Board 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 (2 of 1974), 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. Likewise, the proviso given in sub-section 3 of Section 5 of the Act specifically provides that there shall be at least two members including the principal Magistrate present at the time of final disposal of the case. However, a perusal of the order dated 26.5.2008 passed by the Board shows that the order has been passed only by the Principal Judge, Juvenile Justice Board, Dehradun and not by at least two members including the principal Magistrate which is in violation of the Procedure prescribed in Section 5 of the Act. On this ground alone, the order dated 26.5.2008 passed by Principal Judge, Juvenile Justice Board, Dehradun cannot be sustained in the eyes of law and the same is liable to be set aside. Consequently, the order dated 4.6.2008 passed by Sessions Judge, Dehradun dismissing the appeal and confirming the order dated 26.5.2008 passed by the Principal Judge, Juvenile Justice Board, Dehradun, also deserves to be set aside. 5 7. Since the order dated 7.7.2007 by which the revisionist was declared juvenile and order dated 13.7.2007 by which the revisionist was granted bail, were also not been passed as per the procedure prescribed under Section 5 of the Act which provides that at the time of final disposal of the case, at least two members including the Principal Magistrate should be present; therefore, the orders dated 7.7.2007 and 13.7.2007 are also liable to be set aside being not as per law. 8. For the reasons as recorded above, both the criminal revisions are accordingly allowed. The judgments and orders dated 4.6.2008 passed by Sessions Judge, Dehradun in Crl. Appeals No.22/2008 and 23/2008 is set aside. Consequently, the orders dated 26.5.2008 and 13.7.2007 passed by the Principal Judge, Juvenile Justice Board, Dehradun, and order dated 7.7.2007 passed by CJM, Dehradun are hereby set aside. However, it is provided that in case the revisionist moves an application for declaring him juvenile, in that case his application shall be disposed of as per law. (Dharam Veer, J.) June 19, 2009 Rajeev Dang