# [2001] 3 S.C.R. 669

- **Citation:** [2001] 3 S.C.R. 669
- **Court:** Supreme Court of India
- **Decided:** 2001-05-10
- **Case number:** CRIMINAL APPEAL NO. 4 OF 2000
- **Bench:** K.T. Thomas, R.P. Sethi, S.N. Phukan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2001-3-s-c-r-669-17982
- **Pages:** 40

## Headnote

B
Constitution of India, 1950-Art icle 13 7-Review-Scope of-In
criminal cases-Held, the power is subject to the provisions of law made by
parliament or any rules made under Article 145 of the Constitution-The
mere Jae/ that two vie11's on the same su~ject are possible, is no ground to C
review the earlier judgment passed by a Bench of the same strength-Civil_
Procedure Code, 1908-0rder XLVll Rule /-Supreme Court Rules, 19660rder XL rules I & 5.
Articles 72 and 161--Power to pardon-Held, the powers are absolute D
and cannot be fettered by any statut01y provision-Criminal Procedure
Code, 1973-Section 432, 433 and 433.4,.
Penal Code, 1860-Section 302-Juvenile Justice Act, 1986-Section
22(1) & 8-Death sentence-Review of-On the ground of petitioner being
juvenile on the relevant date-Plea raised for the first time-Petitioner not E
proved to be juvenile on the relevant date-Held, the sentence cannot be
altered-Criminal Procedure Code, 1973-Section 27.
Criminal Procedure Code, 1973
----.,
Sections 235 and 309(2) Third proviso (as amended) by Act 45 of F
-
1978)-Adjournment of case-To enable the accused to show cause against
the sentence proposed-Requirement of-Held, not required-Yet, in
appropriate cases, the Court can grant adjournment, particularly if proposed
sentence is sentence of death-Opportunity of hearing to the accusedNecessity of-Lego/ position reiterated and directions issued.
Section 432-Remission of sentence-Held, does not mean aquittal,
and does not amount to inte1ference with due and proper course of justice.
Sections 433 & _433A-The power to commute a sentence of death is
independent of Section 433A.-The restrictia11 under Section 433A of the
669
G
H
SUPREME COURT REPORTS
[200 I] 3 S. C.R.
A Code comes into operation only after power under Section 433 is exercised.
Criminal Trail-Age of the .accused-Determination of-Reliance on
text books, medical jurisprudence and toxicology-Held, too much reliance
cannot be placed on them-Evidence Act, 1872.
B
Words & Phrases-'Remit'-Meaning of-In the context of Section 432
Cr.P.C
Against the judgment of Supreme Court confirming the death sentence
awarded by the Trial Court and the High Court, petitioner has preferred the
',<___
C review petition.
D
The petitioner contended that he could not be sentenced in either
imprisonment or death sentence, because he was a juvenile within the meaning
of Section 2(h) of Juvenile Justice Act, 1986. Notice was issued on the
limited point of sentence.
The plea of the petitioner being juvenile was raised for the first time
before this Court, and was not raised at the time of investigation, inquiry and
trial, or in his application for grarit of bail, or in his confessional statement
recorded by the Magistrate, or in the memo of appeal filed in the High Court.
E
Prosecution tried to establish that the petitioner was not a juvenile at
F
the relevant date on the basis of the supervision notes of the Superintendent
of Police, the confessional statement of the petitioner, statement of the
accused under Section 161 Cr.P.C., evidence of the father of the petitioner,
the evidence of PW-4, and the sheet on which the statement of the accused
was record~d by the trial Court under Section 235 Cr.P.C.
The petitioner contended that the whole trial proceedings were liable
to be quashed, as he could not have been tried by a court other than the
juvenile court as per sections 23 and 24 of the Juvenile Justice Act; and that
the trial court wrongly held that he was more than 20 years of age; and that
G the evidence on record required re-examination as there were numerous
inconsistencies and contradictions viz. as per the school admission register,
the age of the petitioner was 11 months short of 16 years on the relevant
date and as per the opinion of the radiological expert the petitioner was
within the range of 20 and 21 years on the date of examination and as such
r
within 15 and 16 years on the relevant date; as the marginal error in age
1-t ascertained by· radio

## Text

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RAMDEO CHAUHAN@ RAJ NATH
A
STATE OF ASSAM
MAY 10, 2001
[K.T. THOMAS, R.P. SETHI AND S.N. PHUKAN, JJ.]
B
Constitution of India, 1950-Art icle 13 7-Review-Scope of-In
criminal cases-Held, the power is subject to the provisions of law made by
parliament or any rules made under Article 145 of the Constitution-The
mere Jae/ that two vie11's on the same su~ject are possible, is no ground to C
review the earlier judgment passed by a Bench of the same strength-Civil_
Procedure Code, 1908-0rder XLVll Rule /-Supreme Court Rules, 19660rder XL rules I & 5.
Articles 72 and 161--Power to pardon-Held, the powers are absolute D
and cannot be fettered by any statut01y provision-Criminal Procedure
Code, 1973-Section 432, 433 and 433.4,.
Penal Code, 1860-Section 302-Juvenile Justice Act, 1986-Section
22(1) & 8-Death sentence-Review of-On the ground of petitioner being
juvenile on the relevant date-Plea raised for the first time-Petitioner not E
proved to be juvenile on the relevant date-Held, the sentence cannot be
altered-Criminal Procedure Code, 1973-Section 27.
Criminal Procedure Code, 1973
----.,
Sections 235 and 309(2) Third proviso (as amended) by Act 45 of F
-
1978)-Adjournment of case-To enable the accused to show cause against
the sentence proposed-Requirement of-Held, not required-Yet, in
appropriate cases, the Court can grant adjournment, particularly if proposed
sentence is sentence of death-Opportunity of hearing to the accusedNecessity of-Lego/ position reiterated and directions issued.
Section 432-Remission of sentence-Held, does not mean aquittal,
and does not amount to inte1ference with due and proper course of justice.
Sections 433 & _433A-The power to commute a sentence of death is
independent of Section 433A.-The restrictia11 under Section 433A of the
669
G
H
SUPREME COURT REPORTS
[200 I] 3 S. C.R.
A Code comes into operation only after power under Section 433 is exercised.
Criminal Trail-Age of the .accused-Determination of-Reliance on
text books, medical jurisprudence and toxicology-Held, too much reliance
cannot be placed on them-Evidence Act, 1872.
B
Words & Phrases-'Remit'-Meaning of-In the context of Section 432
Cr.P.C
Against the judgment of Supreme Court confirming the death sentence
awarded by the Trial Court and the High Court, petitioner has preferred the
',<___
C review petition.
D
The petitioner contended that he could not be sentenced in either
imprisonment or death sentence, because he was a juvenile within the meaning
of Section 2(h) of Juvenile Justice Act, 1986. Notice was issued on the
limited point of sentence.
The plea of the petitioner being juvenile was raised for the first time
before this Court, and was not raised at the time of investigation, inquiry and
trial, or in his application for grarit of bail, or in his confessional statement
recorded by the Magistrate, or in the memo of appeal filed in the High Court.
E
Prosecution tried to establish that the petitioner was not a juvenile at
F
the relevant date on the basis of the supervision notes of the Superintendent
of Police, the confessional statement of the petitioner, statement of the
accused under Section 161 Cr.P.C., evidence of the father of the petitioner,
the evidence of PW-4, and the sheet on which the statement of the accused
was record~d by the trial Court under Section 235 Cr.P.C.
The petitioner contended that the whole trial proceedings were liable
to be quashed, as he could not have been tried by a court other than the
juvenile court as per sections 23 and 24 of the Juvenile Justice Act; and that
the trial court wrongly held that he was more than 20 years of age; and that
G the evidence on record required re-examination as there were numerous
inconsistencies and contradictions viz. as per the school admission register,
the age of the petitioner was 11 months short of 16 years on the relevant
date and as per the opinion of the radiological expert the petitioner was
within the range of 20 and 21 years on the date of examination and as such
r
within 15 and 16 years on the relevant date; as the marginal error in age
1-t ascertained by· radiological examination is two years at either side, the
\y---
R.D. CHAUHAN v. STATE OF ASSAM
671
benefit of which should go to the accused; and that the mandate of Section A
235 Cr.P.C., was violated as the judgment was pronounced on the same day
when the conviction was recorded.
As regards the necessity to afford opportunity of hearing to the accused
on the question of sentence, reiterating the legal position, the following
B
directions were issued by the Court :
t. When the conviction is under Section 302 IPC (with or without the
aid of Section 34 or 149 or 1208 of IPC) if the Sessions Judge does not
propose to impose death penalty on the convicted person it is unnecessary
to proceed to hear the accused on the question of sentence. Section 235(2) c
of the Code will not be violated if the sentence of life imprisonment is
awarded for that offence without hearing the accused on the question of
sentence.
2. In all other cases the accused must be given sufficient opportunity
of hearing on the question of sentence.
D
3. The normal rule is that after pronouncing the verdict of guilty the
hearing should be made on the same day and the sentence shall also be
""
pronounced on the same day.
'""'
4. In cases where the Judge feels or if the accused demands more time E
for hearing on the question of sentence (especially when the Judge propose
to impose death penalty) the proviso to Section 309(2) is not a bar for
affording such time.
5. For any reason the court is inclined to adjourn the case after
~
pronouncing the verdict of guilty in grave offences the convicted person shall F
~.
be committed to jail till the verdict on the sentence is pronounced. Further
detention will depend upon the process of law.
Dismissing the petition by majority, without prejudice to the right of
the petitioner to get the benefit under Sections 432, 433 and 433A of the
Code of Criminal Procedure, the Court
G
HELD: Per Sethi, J.
--~
I. I. The grounds urged in the petition and at the Bar do not make out
"
a case for review. In the guise of this petition, the petitioner has sought the
reappraisal of the whole evidence, firstly to hold him not guilty and even if H
-(
672
SUPREME COURT REPORTS
[2001] 3 S.C.R.
A he is found guilty to give him benefit of tl1e Juvenile Justice Act.·
1684-H; 685-AJ ·
;>.....
1.2. The mere fact, that two views on the same subject are possible, is
no ground to review the earlier judgment passed by a Bench of the same
strength. Article 137 of the Constitution of India, 1950 empowers this Court
B 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, 1966 made in exercise of the powers under Article
145 of the Constitution prescribe that in civil cases, review lies on any of
the grounds specified in Order 47 Rule J of the Civil Procedure Code, 1908.
"-
. '
c Under Order 40 Rule 1. of the Supreme Court Rules no review lies except
on the ground of error apparent on the face of the record in criminal cases.
Order 40 Rule 5 of the Supreme Court Rules provides that after an application
for review has been disposed of; no further application shall be maintained
in the same matter. 1681-E; 682-D-E; 683-A-BI
D
Lily Thomas v. Union of India and Ors., JT (2000) 5 SC 617; Mis
Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, AIR (1980) SC
674; Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, 11985) 2
SCR 8; State of Orissa v. Titaghur Paper Mills, AIR (1985) SC I 293; Union
!'·
of India v. Godfrey Philips India Ltd., 119851Suppl.3 SCR 123; R.S. Nayak
:>--
E
v. A.R. Antulay, AIR (1984) SC 684; Prem Chand Garg v. Excise Commissioner
UP. Allahabad, AIR (1963) SC 996; Naresh Shridhar Mirajkar v. State of
Maharashtra, 119661 3 SCR 744 and Smt. Ujjam Bai v. State.pf UP., 11963)
1 SCR 778, referred to.
2.1. The petition~r was not a juvenile within the meaning of the Juvenile
F
Justice Act; not 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 o"f law. From the evidence produced and the
material placed before the Courts below, there is not an iota of doubt to hold
that the petitioner was a child or near or about tlie age of being a child within
G the meaning of the Juvenile Justice Act or Children Act. He is proved to be
major at the time of the commission of the offence. 1689-D; 694-GI
2.2. The plea of the petitioner being juvenile is not··only an afterthought but a concoction of his imagination at a belated stage to thwart the
rcourse of justice by having resort to wrangles of procedures and technicalities
•
H of law. In case of the petitioner, the investigating officer, the Magistrate
~
•
_;/:
'l
""
•
R.D. CHAUHAN v. STATE OF ASSAM
673
before whom the accused was produced, the Magistrate who recorded his
confessional statement and the Sessions Court to whom the accused was
committed did not find the accused a juvenile or a child. Such Magistrate and
Court were in a better position to form an opinion regarding the age of the
accused who had admittedly appeared before them as they had the opportunity
to see and observe him. (687-B-DJ
State of Ji.myana v. Ba/want Singh, (J 9931 Suppl. I SCC 409, relied
on.
2.3. A harmonious reading of the Juvenile Justice Act, particularly
Section 8 and Section 27 Cr.P.C., would show 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 to the Juvenile Courts, ifthe Act is applicable
in the State and the Courts have been constituted, or otherwise refer the case
to the Court of Chief Judicial Magistrate who will deal with the matter in
accordance with the provisions of law. In the instant case, no one - the
investigating agency, the Magistrate the Court the accused - felt the necessity
of application of the provisions either of Section 27 of Criminal Procedure
Code or the provisions of the Juvenile Justice Act, particularly Section 8
thereof. (686-G-H; 687-A-B)
2.4. Too much reliance cannot be placed upon text books, on medical
jurisprudence and toxicology while determining the age of the accused. In
A
B
c
D
E
F
this vast country with varied latitude, heights, environment, vegetation and
nutrition, the height and weight cannot be expected to be uniform. The doctor
has opined the age of the accused to be admittedly more than 20 years and
less than 25 years. The statement of the doctor is no more than an opinion.
The Court has to base its conclusions upon all the facts and circumstances
disclosed on examining the physical features of the person whose age is in
question, in conjunction with such oral testimony as may be available. An X-
; ray ossification test may provide a surer basis for determining the a~e of G
an individual than the opinion of a medical expert but it can by no means be
s~ infallible and accurate a test as to indicate the exact date of birth of the
·person concerned. f 694-D-FI
Jaya Mala v. Home Secretmy, Government of Jammu & Kashmir and
Ors .. 119821 2 sec 538, distinguished.
H
674
SUPREME COURT REPORTS
[200 I] 3 S.C.R.
A
2.5. The manner in which the school admission register has been
maintained does not inspire confidence of the Court to put any reliance on
it. The entries made in such a register cannot IJe taken as a proof of age
of the accused for any purpose. (693-D-E[ ·
3. The mandate of the legislature is clear and unambiguous that no
B adjournment can be granted for the purpose only of enabling the accused
person to show cause against the sentence proposed to be imposed upon him.
In a case punishable with death or imprisonment for life, there is no difficulty
for the Court where the sentence proposed to be imposed is alternative
sentence of life imprisonment but if it proposes to award the death sentence,
·x__
C it has discretion to adjourn the case in the interests of justice. Despite the
bar of third proviso to sub-section (2) of Section 309 Cr.P.C., the Court, in
appropriate cases, can grant adjournment for enabling the accused persons
to show cause against the sentence proposed on him par_ticularly if such
proposed sentence is sentence of death. In all cases where a conviction is
recorded in cases triable by the Court'of Sessions or by Special Courts, the
D Court is enjoined 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 such sentence awarded is stayed or
suspended by a competent Court of jurisdiction. Such a course is necessitated
E 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. (697-B-E[
Muniappan v. State of Tamil Nadu, 11981 [ 3 SCC 11 and Malkiat
F Singh and Ors. v. State of Punjab, (1991[ 3 SCC 341, distinguished.
State of Maharashtra v. Sukhdev Singh and Anr., [19921 3 SCC 700
and Allauddin Mian and Ors. v. State of Bihar, [ 19891 3 SCC 5, referred to.
G
Per Phukan, J. (concurring)
1. Power of review is a restricted power which authorises the Court
which passed the order sought to be reviewed, to look over and go through
the order, not in order to substitute a fresh or a second order, but in order
to correct it or improve it becau<;e some materials which it ought to have
H
~onsi~cred has rscapcd its consideration. [698-H; 699-A-B[
>-.
;-
-
..
R.D. Cll1\UHAN v. ST/\TEOF ASSAM
675
2.1. The accused is not remediless. Sections 432, 433 and 433A of the A
Code of Criminal Procedure and Articles 72 and 161 of the Constitution deal
with pardon. The power under Article 72 and Article 161 of the Constitution
is absolute and cannot be fettered by any statutory provision such as Sections
432, 433 and 433A of the Code or by any Prison Rules. (698-C-EI
2.2. There is no obstacle in the way of the President or Governor, as B
the case may be in remitting the sentence of death. A remission of sentence
does not mean acquittal. The release of the prisoners condemned to death in
·exercise of the powers conferred under Section 432 of the Criminal Procedure
-"X
Code and Article 161 of the Constitution does not amount to interference
with due and proper course of justice, as the power of the Court to pronounce C
upon the validity, propriety and correctness of the conviction and the sentence
remains unaffected. Similar power as those contained in Section 432 of the
Code or Article 161 of the Constitution can be exercised before, during or
after the trail. The power exercised under Section 432 of the Code is largely
an executive power vested in the appropriate Government and by reducing the
sentence, the authority concerned thereby modify the judicial sentence. The D
section confines the power of the Government to the suspension of execution
of the sentence or the remission of the whole or any part of the punishment.
Section 432 of the Code gives no power to the Government to revise the
judgment of the Court. It only provides power of remitting the sentence.
Remission of punishment assumes correctness of the conviction and only E
reduces punishment in part or whole. The word 'remit' as used in Section
432 is not a term of art. Some of the meaning of the word 'remit' are 'to
pardon, to refrain from inflicting, to give up'. 1698-F-H; 699-A-BI
2.3. The power to commute a sentence of death is independent of
Section 433A. The restriction under Section 433A of the Code comes into p
operation only after power under Section 433 is exercised. Section 433A is
applicable to two categories of convicts: (a) those who could have been
punished for sentence of death and (b) those whose sentence have been
converted into imprisonment for life under Section 433. Section 433A does
not violate Article 20(1) of the Constitution. 1699-CI
G
Mura Ram v. Union of India, I l 981 I I SCC 106, referred to .
Per Thomas, J (dissenting)
I. Power of Supreme Court as envisaged under Article 137 of the
Constitution is wider than the review jurisdiction conferred by other statutes H
•.
676
SUPREME COURT REPORTS
j2001) 3 S.C.R~
A on the Court. Article 137 empowers the Supreme Court to review any
judgment pronounced or order made, subject to the provisions of any law
made by Parliament or any rule made under Article 145 of the Constitution.
1702-B-CI
P.N. lswara Iyer v. Registrar, Supreme Court of India, (19801 4 SCC
B 680 and Suthendraraja v. State, 119991 9 sec 323, referred to.
2.1. When the possibility of the petitioner having been a juvenile on the
relevant date cannot be excluded
1
from the conclu~ion by adopting reasonable •
standards, the .interdict contained ip Section 22(1) of the Juvenile Act cannot
be bypassed for awarding death penalty to the petitioner so long as the death
C penalty is permitted to survive Article 21 of the Constitution, only if the
lesser alternative can be foreclosed unquestionably. In other words, ifthe age
of the petitioner cannot be held to be unquestionably above 16 on the relevant
date its corollary is that the lesser sentence also cannot unquestionably be
foreclosed. f 707-G-1-U
0
Bachan Singh v. State of Punjab, 119801 2 SCC 684, relied on.
2.2. The fact that the tria! Court and the High Court did not accept the
plea of the petitioner on the score of his juvenility, or the fact that this Court
did not upset such finding, is not enough to hold that petitioner's plea
regarding his juvenility as on the crucial date does not survive for
E consideration. 1704-D)
f
2.3. The Court cannot act on any of the materials projected by the
prosecutio'l for the purpose of reaching a conclusion regarding the age of
the petitioner as on the relevant date. The exercise of hatching or brewing
up possible date or year of birth with the help of scattered answers given by
F the father of the peti~ioner, all during cross-examination, is a very unsound
course to be adopted. At any rate such an exercise cannot be sustained to
the detriment of the person concerned. l'lor can the Court rely on the
testimony of PW-4 who said that the accused told ~im in 1991 that his age
was 20. Such a statement cannot be regarded as reaching anywhere near the
proximity of reliability for fixing up tfle correct ~ge of a person. The statem~nt
recorded under Section 161 of the Code is not permitted by hw to be used
except for contradicting the author oft!Je statement. Hence it is impermissible
to look into that material also. Unless the person, who filled up tile prefatory
columns on the sheet on which statement -0f the accused was recorded under
Section 235 of the Code, is examined for showing how he gathered the
H information .regarding all such columns, the entries therein cannot he
__/
;
_ _,>(
.I
......
R.D. CHAUHAN v. STATE OF ASSAM
677
regarded as legal evidence. At any rate, the Court cannot proceed on a
~ption that such columns were filled up by the accused himself.
1706-B-EJ
2.4. The evidence of the court witness, the doctor, is a material, which
creates reasonable doubts as to the possibility of the petitioner having been
below the age of 16 on the relevant date. Of course the doctor's estimate of
age is not a sturdy substitute for proof as it is only his opinion. But such
opinion of an expert cannot be side lined in the realm where the Court gropes
in dark to find out what would possibly have been the age of a citizen for the
purpose of affording him a constitutional protection. In the absence of all
other acceptable materials, if such opinion points to a reasonable possibility
regarding the range of his age, it has certainly to be considered.
1707-A; F-G)
3. The sentence cannot be altered on the reasoning that the trial Court
did not adjourn the proceedings, after pronouncing the conviction, for the
p_y-pose of providing the convicted person time to reflect on the question of
·sentence. The trial judge chose to pronounce the sentence on the same day
of pronouncing the verdict of conviction. When the Code of Criminal
Procedure was amended in 1978 (by Act 45of1978) a proviso was introduced
to sub-section (2) of Section 309 of the Code by which an interdict has been
added that "no adjournment shall be granted for the purpose only of enabling
the accused persons to show cause against the sentence proposed to be
imposed on him." The said proviso does not make a distinction between
offences punishable with death or imprisonment for life and the other offences,
. in relation to the application of the said proviso. The proviso thus reflects
the parliamentary concern that the rule in all cases must be that sentence
shall be passed on the same day of pronouncement of judgment in criminal
cases as far as possible, and perhaps by way of exception the said rule can
be relaxed QY adjourning the case to another day for passing orders on the
sentence. f 699-G-H; 700-A-CI
State of Maharashtra v. Sukhdev Singh and Anr., 11992) 3 SCC 700,
relied on.
Allauddin Mian and Ors. v. State of Bihar, 11989) 3 SCC 5 and Malkiat
"""'..
Singh and Ors. v. State of Punjab, 119911 4 'sec 341, distinguished.
Muniappan v. State of Tamil Nad11, 119811 3 SCC 11, referred· to.
A
B
c
D
E
F
G
CRIMINAL APPELLATE JURISDICTION : Review Petition (Crl.) H
678
SUPREME COURT REPORTS
[200 I) 3 S.C.R.
A No. 1105 of 2000.
B
c
(Under Article 137 of the Constitution of India)
IN
CRIMINAL APPEAL NO. 4 OF 2000
From the Judgment and Order dated 1.2.99 of the Gauhati High
Court in Crl. A. No. 109(J)/98 Cr!. D.R. No. 1/98.
S. Muralidhar for the Petitioner/ Appellant.
Sunil Kr. Jain, Amitesh Lal for Mis. Jain Hansaria and Co., for the
Respondent.
The Judgments of the Court were delivered by
SETHI, J. Equating him with a beast, this Court [2000] 7 SCC 455]
'\
confirmed the death sentence awarded to the petitioner by the trial court and
D the High Court on proof of his having caused the death of four persons of
E
F
a family including ladies and a child of two and a half years of age. Confirming
the death sentence this Court had held:
"We are satisfied that the present case is an exceptional case which
warrants the awarding of maximum penalty under the law to the
accused/appellant. The crime committed by the appellant is not only
shocking but it has also jeopardised the society. The awarding of
lesser sentence only on the ground of the appellant being a youth at
the time of occurrence cannot be considered as a mitigating
circumstance in view of our findings that the murders committed by
him were most cruel, heinous and dastardly. We have no doubt that
the present case is the rarest of the rare requiring the maximum
penalty, imposable under law."
Not satisfied with the murder of human beings, the petitioner has now
tried to scuttle the process of law and thwart the course of Justice by resort
G to having recourse of seeking review of sentence on imaginative and
concocted grounds. He has contended that as he was a juvenile within the
meaning of Section 2(h) of the Juvenile Justice Act, he could not be sentenced
to any imprisonment much less the death sentence. In support of his
contentions the learned counsel appearing for the petitioner has relied upon
a host of authorities, wherein keeping in view the age of the accused and
H treating them as chi Id, th is Court had passed orders for setting those accused
'
-
R.D. CHAUHAN v. STATE OF ASSAM [SETI-IL .I.]
679
persons at liberty.
After issue of notice, a two-judge Bench of this Court held that the
question of conviction of the petitioner under Section 302 of the IPC cannot
A
· be re-opened. Taking note of the contention of the learned counsel for the
petitioner that the accused was juvenile at the appropriate time and there was
prohibition regarding the sentence to be imposed on him, the review petition B
was directed to be considered for that limited purpose only. As the question
was important, the matter was referred to a larger Bench.
Heard the learned counsel appearing for the parties at length and
critically examined the whole record in the case for appreciating the C
submissions made on behalf of the petitioner who has been awarded the
death sentence.
This 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:
D
"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. v. Pradyunmansinghji
Arjunsinghji, AIR (1970) SC 1273 held that the power ofreview is not E
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 F
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 Court from rectifying the error. This Court in S. Nagaraj
& Ors. etc. v. State of Karnataka & Anr. etc. [1993] Supp. 4 SCC 595 G
held:
''Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal
acceptance of human fallibility. Yet in the realm of law the courts
and even the statutes lean strongly in favour of finality· of H
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decision legally and properly made. Exceptions both statutorily
and judicially have been carved out to correct accidental mistakes
or miscarriage of justice. Even when there was no statutory
provision and no rules were framed by the highest court
indicating the circumstances in which it could rectify its order
the courts culled out such power to avoid abuse of process or
miscarriage of justice. In Raja Prithwi Chand Law Choudhury
v. Sukhraj Rai, AIR (1941) FC I the Court observed that even
though no rules had been framed permitting the highest Court
to review its order yet it was available on the limited and narrow·
ground developed by the Privy Council and the House of Lords.
The Court approved the principle laid down by the Privy Council
in Rajunder Narain Rae v. Bijai Govind Singh, (1836) I Moo PC
117 that an order made by the Court was final and could not be
altered:
' ... nevertheless, if by misprision in embodying the judgments, by
errors have been introduced, these Courts possess, by Common
Law, the same power which the Courts of record and statute
have of rectifying the mistakes which have crept in .... The House
of Lords exercises a similar power of rectifying mistakes made in
drawing up its own judgments, and this Court must possess the
same authority. The Lords have however gone a step further,
and have corrected mistakes introduced through inadvertence in
the details of judgments; or have supplied manifest defects in
order to enable the decrees to be enforced, or have added
explanatory matter, or have reconciled inconsistencies.'
Basis for exercise of the power was stated in the same decision
as under:
'It is impossible to doubt that the indulgence extended in such
cases is mainly owing to the natural desire prevailing to prevent
irremediable injustice being done by a Court of last resort, where
by some accident, without any blame, the party has not been
heard and an order has been inadvertently made as if the party
had been 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 fina,lity. When the Constitution was framed
the substantive power to rectify or recall the order passed by
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R.D. CHAUHAN v. STATE OF ASSAM !SETHI, .1.)
681
this Court was specifically provided by Article 137 of the A
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 pennitted this Court to frame rules as to the conditions B
subject to which any judgment or order may be reviewed. rn
exercise of this power Order XL had been framed empowering
this Court to review an order in civil proceedings on grounds
analogous to Order XLVH Rule I 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 C
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 power to make such orders as may be
necessary in the interesr of justice or to prevent the abuse .of
process of Court. The Court is thus not precluded from recalling D
or reviewing its own order if it is satisfied that it is necessary
to do so for sake of justice."
The mere fact that two views on the same subject are possible is no
ground to review the earlier judgment passed by a Bench of the same
strength.
This Court in Mis. Northern India Caterers (India) Ltd v. Lt.
Governor of Del/ii, AIR (1980) SC 674 considered the powers of this
Court under Article 137 of the Constitution read with Order 47 Rule
I CPC and Order 40 Rule I of the Supreme Court Rules and held:
"It is well settled that a party is not entitled to seek a review of
a judgment delivered by this Court merely for the purpose of a
rehearing and a fresh decision of the case. The normal principle
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is that 3 judgment pronounced by the Court is final, and
departure from that principle is justified only when circumstances G
of a substantial and compelling character make it necessary to
do so. Sajjan Singh v. State of Rajasthan, [1965] I SCR 933 at
p. 948. For instance, if the attention of the Court is not drawn to
a material statutory provision during the original hearing. G. L.
Gupta v. D.N. Mehta, [1971] 3 SCR 748 at p.760. The Court may
also reopen its judgment if a manifest wrong has been done and H
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it is necessary to pass an order to do full and effective justice.
ON Mohindroo v. Dist. Judge, Delhi, [ 1971] 2 SCR 11 at p.27.
Power to review its judgments has been conferred on the Supreme
Court by Art.137 of the Constitution, and that power is subject
to the provisions of any Jaw made by Parliament or the rules
made under Art.145. In a civil proceeding, an application for
·review is entertained only on a ground mentioned in 0. XLVll,
Rule I of the Code of Civil Procedure and in a criminal proceeding
on the ground of an error apparent on the face of the record.
(Order XL, R.1, Supreme Court Rules, 1966). But whatever the
nature of the proceeding, it is beyond dispute that a review
proceeding cannot be equated with the original hearing of the
case, and the finality of the judgment delivered by the Court will
l")Ot be reconsidered except 'where a glaring omission or patent
mistake or like grave error has crept in earlier by judicial fallibility'.
Chandra Kanta v. Sheikh Habib, [1975] 3 SCR 935."
D
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
exerc"ise of the powers under Article 145 of the Constitution prescribe
that in civil cases, review lies on any of the ground specified in Order
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47 Rule I of the Code of Civil Procedure which provides:
"Application for review of judgment -(I) 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 which passed the
decree or made the order."
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683
Under Order 40 Rule 1 of the Supreme Court Rules no review lies A
except on the ground of error apparent on the face of the record in
criminal cases. Order 40 Rule 5 of the Supreme Court Rules provides
that after an application for review has been disposed of no further
application shall be entertained in the same matter.
In A.R. Antulay's case (supra) this Court held that the principle of
English Law that the size of the Bench did not matter has not been
accepted in this country. In this country there is a hierarchy within
the Court itself where larger Benches overrule smaller Benches. This
practice followed by the Court was declared to have been crystalised
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as a rule of law. Reference in that behalf was made to the judgments C
in Javed Ahmed Abdul Hamid Pa•mla v. State of Maharashtra, [ 1985)
2 SCR 8; State ofOrissa v. Titaghur Paper Mills, AIR (1985) SC 1293
and Union of India v. Godfrey Philips India Ltd, (1985) Supp. 3 SCR
123. In that case the Bench comprising seven judges was called upon
to decide as to whether the directions given by the Bench of this D
Court comprising five judges in the case of R.S. Nayak v. A.R. Antulay,
AIR (1984) SC 684 were legally proper or not and whether the action
and the trial proceedings pursuant to those directions were legal and
valid. In that behalf reference was made to the hierarchy of Benches
and practice prevalent in the country. It was observed that Court was
not debarred from reopening the question of giving proper directions E
and correcting the error in appeal if the direction issued in the earlier
case on 16th February, 1984 were found to be violative of limits of
jurisdiction and that those directions had resulted in deprivation of
fundamental rights of a citizen granted by Articles 14 and 21 of the
Constitution of India. The Court referred to its earlier judgment in F
Prem Chand Garg v. Excise Commissioner UP., Allahabad, AIR
(1963) SC 996; Naresh Shridhar Mirajkar v. State of Maharashtra,
(1966) 3 SCR 744 =AIR (1967) SC I and Smt.Ujjam Baiv. State of UP.,
(1963) I SCR 778=AIR(1962)SC 1621 andconcludedthatthecitizens
should not suffer on account of directions of the Court based upon G
error leading to conferment of jurisdiction. The directions issued by
the Court were found on facts to be violative of the limits of jurisdiction
resulting in the deprivation of the fundamental rights guaranteed to
the appellant therein. It was further found that the impugned directions
had been issued without observing the principle of audi a/teram
partem.
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It follows, therefore, that the power of review can be exercised for
correction of afmistake and not to substitute a view. Such powers can
be exercised ~ithin the limits of the statute dealing with the exercise
of power. ThJ review cannot be treated an appeal in disguise. The
mere possibil~ty of two views on the subject is' not a ground for
review. Once f- revi.ew 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 b~ the Benches of coordinated jurisdiction of equal strength
has to b~ followed and practised. However, this Court in exercise of
its powJrs under Article 136 or Article 32 of the Constitution and
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upon satisfaction that the earlier judgments have resulted in μeprivation
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 ground that the petitioner was
juvenile on the date of commission of the offence. According to the learned
D counseJ appearing for the petitioner it is contended that as per school records
the date of birth of the petitioner was 1.2.1977. He was 15 years 1 month and
7 days old on the date of occurrence. According to him the medical examination
conducted on 23rd December, 1997 revealed that the accused was 15 years
two months and J 5 days old on the relevant date. It is contended that the
E petitioner could not have been tried by a court other than the juvenile court
as per Sections 23 and 24 of the Juvenile Justice Act, 1986 (hereinafter
referred to as "the Act"). As the trial was concededly not conducted by a
juvenile court, the whole proceedings were liable to be quashed. It is further
contended that the trial court wrongly held the petitioner to be more than 20
years of age and the High Court erred in not deciding the question of age
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despite concession made by the counsel appearing for the petitioner. It is
submitted that the counsel of the accused could not have sacrificed the
interest of the accused and should have ·insisted for a finding from the court
·regarding his being a child or a juvenile. It is further submitted that the
evidence on record requires re-examination as allegedly there are numerous
G inconsistencies and· contradictions, the benefit of which is to go to the
accused. Though not pleaded, yet the learned counsel argued that as the
judgment was pronounced on the same day when the conviction was recorded,
the mandate of Section 235 of the Code of Criminal Procedure (hereinafter
referred to as "the Code") stood violated.
The grounds urged in the petition and at the Bar do not make out a case
R.D. CHAUHAN v. STATE OF ASSAM [SETHI, J.]
685
for review. In the guise of this petition, the petitioner has sought the re- A
appraisal o~ the whole evidence firstly to hold him not guilty and even if he
. --<.
is found guilty to give him the benefit of the Act. The contentions raised and
the prayer made are admittedly beyond the scope ofreview. This petition can
be dismissed only on this ground. However, being the case of death sentence,
we have decided to consider the whole matter in depth to ascertain as to B
whether the petitioner is entitled to the benefit of the Act or not. We have
fm1her opted to consider that even if he is not proved to be juvenile, can he
be given the benefit of his age on the ground of his allegedly being on the
borders of the age contemplated under the Act for the purposes of awarding
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him the alternative sentence of imprisonment for life.
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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.