Judgment Passed By Single Member Of The Juvenile Justice Board Is Void Ab Initio: Himachal Pradesh HC [Read Judgment]

The Himachal Pradesh High Court on May 28, 2019, in the case of State of Himachal Pradesh v. Happy, has held that judgment passed by a single member of the Juvenile Justice Board is void ab initio as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

A single judge Bench of Justice Tarlok Singh Chauhan said that the Principal Magistrate could not have finally disposed of the case in contravention of the provisions of the Juvenile Justice Act and, therefore, the order passed by it is coram non judis and being nullity is void ab initio.

Justice Chauhan passed the judgment on a criminal revision petition filed by state of Himachal Pradesh against the order of acquittal passed by the Principal Magistrate, Juvenile Justice Board, Bilaspur, H.P., wherein it had acquitted the juvenile under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

While the judgment was assailed on merits, the moot question before the court was whether the Principal Magistrate while sitting singly could have finally decided/disposed of the case.

The court taking into consideration the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 & 2015 answered the above question in negative.

It said that “it is abundantly clear that under the Acts, the cases of "juvenile in conflict 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 the Principal Magistrate present at the time of disposal of such case. No individual Member including the Principal Magistrate and no two Members excluding the Principal Magistrate can finally dispose of the case.”

The court said that it is well settled and needs no authority that "where a Court takes upon itself to exercise a jurisdiction it has not possessed its decision amounts to nothing". Consequently, any order passed by the Court having no jurisdiction is non est and its invalidity can be set up when it is 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 order passed by such authority is coram non judis, the court observed.

Further, the court placed reliance on the decision of the Supreme Court in Hasham Abbas Sayyad v. Usman Abbas Sayyad and others, AIR 2007 (SC) 1077, wherein it was held that "the core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata which are procedural in nature would have no application in a case where an order has been passed by the Tribunal/Court which has no authority in that behalf. Any order passed by a court without jurisdiction would be coram non judice being a nullity, the same ordinarily should not be given effect to."

Thus, the court allowed the criminal revision petition and quashed and set aside the impugned judgment. The court remanded the case to Juvenile Justice Board, Bilaspur, to be decided afresh in accordance with law after hearing both the parties and directed for speedy disposal of the case latest by September 30, 2019.

[Read Judgment]