SABAN MAJHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The sole petitioner Saban Majhi, son of Charnra Majhi of village Uppardiha in the district of Keonjhar and some others were convicted for offence, under Sections 341/376(2)(g)/302/201/34, IPC by the learned Ad hoc Additional Sessions Judge (F.T.C.), Keonjhar in S.T.No. 125/1 of 2003/ 04. The petitioner preferred JCRLA No. 143 of 2004 and others preferred two other appeals. All the appeals were heard and disposed of together. Vide judqrnent date 23.11.2011 passed in those appeals, this Court maintained the conviction recorded by learned Trial Court and confirmed the order of sentence. The present petitioner has now questioned legality of the conviction so recorded and sentence so awarded on the ground of his juvenility.

(2.) The question of juvenility was never raised by or on behalf of the petitioner at any stage of the proceeding and trial or in the Jail Criminal Appeal before the High Court. This Court, on consideration of the arguments advanced and the evidence obtained on record, dismissed the appeal preferred by this petitioner vide JCRLA No. 143 of 2004. The JCRLA was dismissed on 23.11.2011. The present writ petition was filed on 10.2.2012 with a prayer to recall the order passed in the aforesaid Jail Criminal Appeal and to set the petitioner at liberty on the ground that the writ petitioner was a juvenile on the date of occurrence, i.e. 11,2.2003. Vide order dated 5.3.2012 passed in this writ petition, this Court directed an enquiry to be conducted in respect of the present writ petitioner Saban Majhi by the Juvenile Justice Board, Keonjhar and to find out whether he was a juvenile on the date of occurrence, i.e. 11.2.2003. In obedience to the aforesaid direction, learned Chief Judicial Magistrate-cum-Principal Magistrate, Juvenile Justice Board, Keonjhar conducted an enquiry and found that the writ petitioner Saban Majhi was aged 15 years 7 months and 5 days on the date of the alleged occurrence, i.e. 11.2.2003, and thus he was a juvenile on the relevant date of occurrence.

(3.) The writ petition having been nomenclatured to be one under Articles 226 and 227 of the Constitution of India read with Section 362 of the Criminal Procedure Code (Cr.P.C. for short) with the main prayer to recall/modify the order/judgment passed in JCRLA No. 143 of 2004, the very first objection that is raised by Mr. Pradhan, learned Addl. Govt. Advocate is to the effect that in the guise of exercise of jurisdiction under Articles 226 and 227 of the Constitution of India, the judgment passed in the aforesaid Jail Criminal Appeal cannot be reviewed in derogation of the express provision-contained in Section 362, Cr.P.C. Learned counsel for the petitioner oppugns such objections with all the vehemence at his command and submits that in view of the provision contained, in Section 7A of the Juvenile Justice (Care & Protection of Children) Act, 2000, as amended in 2006 by the Amending Act 33 of 2006 (hereinafter referred to as "Juvenile Justice Act" for short), this Court cannot close its eyes when there has been flagrant violation of the rights of the petitioner guaranteed under Article 21 of the Constitution of India especially in view of the fact that he is confined under illegal detention.