The judgment passed by the Principal Magistrate alone, in violation of the proviso to Section 5(3) of the Juvenile Justice (Care and Protection of Children) Act, 2000, was illegal and without jurisdiction.

Jain, CJ (Oral).

Learned Principal Magistrate, Juvenile Justice Board, West District at Gyalshing vide her letter/Memo No. 544/2014/CJJM (W) dated 26th May, 2014, has referred this matter to this Court stating therein that she has decided the Juvenile Justice Board Case No. 01 of 2013, vide judgment dated 17th September, 2013, sitting alone, whereas as per proviso to Section 5 (3) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, ‘the Act of 2000’), any matter of Juvenile Justice Board has to be decided finally by at least two members of the Board including the Principal Magistrate. She has further mentioned that the said judgment is contrary to proviso of Section 5(3) of the Act of 2000. However, the Board does not have any power to recall such an order, therefore, this Court should pass an appropriate order. The aforesaid letter was ordered to be registered as Crl. Revision Petition.

2. The Revision Petition was admitted and notice was issued to the respondent. In response to show cause notice, the respondent is present in person along with his father Mr. Bhim Bahadur Sunar. He was asked whether he wants any assistance of any Advocate, he refused for it and submitted that other similar matters have been allowed and the matters have been remanded back to Juvenile Justice Board, West Sikkim at Gyalshing, therefore, same order may also be passed in the present case.

3. Learned Addl. Public Prosecutor submitted that the present matter is fully covered by a decision of this Court dated 02nd June, 2014 passed in SB Crl. Rev. P. No. 05 of 2014 State of Sikkim vs. Prakash Chettri. Therefore, for the same reasons, this Revision may also be allowed and the impugned order passed by the Principal Magistrate, Juvenile Justice Board, West Sikkim at Gyalshing be set aside.

4. I have considered the submissions of learned Addl. Public Prosecutor and respondent. There is no dispute that the impugned judgment was passed by Principal Magistrate, sitting alone, in violation of proviso to Section 5(3) of the Act of 2000. This Court in State of Sikkim vs. Prakash Chettri (supra) held as under: -

“3. From the impugned judgment, it is clear that judgment has been passed by the Principal Magistrate alone, whereas, as per proviso to sub-section (3) of Section 5 of the Act of 2000, the matter could have been disposed off finally by at least two members of the Board. Section 5 (3) of the Act of 2000 is reproduced as under: -

“5. Procedure, etc., in relation to Board. –

(1) ……………………………………………..

(2) ……………………………………………..

(3) A Board may act notwithstanding the absence of any member of the Board, and no order made by the Board 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.

(4) ………………………………………………….”

(emphasis supplied)

4. Since, there is no dispute in the case that the judgment has been passed by Principal Magistrate alone, whereas the case should have been disposed off finally by the Juvenile Justice Board consisting of at least two members including the Principal Magistrate. Therefore, the judgment is apparently illegal and without jurisdiction and the same deserves to be set aside.

5. Consequently, the Crl. Revision Petition is allowed. The impugned judgment dated 31.03.2014 passed by Principal Magistrate, Juvenile Justice Board, West Sikkim at Gyalshing in JJB Case No. 12 of 2013 is set aside. The case is remanded to Juvenile Justice Board, West Sikkim at Gyalshing for deciding the case afresh in accordance with law, after hearing both the parties.”

The present case is fully covered by a decision of this Court in Prakash Chettri’s case (supra).

5. In view of above discussions, the Revision Petition is allowed and the impugned order dated 17th September, 2013 passed in JJB Case No. 01 of 2013 is set aside. The case is remanded to Juvenile Jus