Sanjay Kedia Vs. State of Bihar & Ors [1993] INSC 252 (30 April 1993)

Venkatachalliah, M.N.(Cj) Venkatachalliah, M.N.(Cj) Thommen, T.K. (J)

CITATION: 1994 SCC Supl. (1) 509

ACT:

HEAD NOTE:

ORDER

1. We have heard Shri Gopal Subramaniam, learned counsel for the petitioner.

2. The petitioner was tried for an offence under Section 302, IPC and sentenced to imprisonment for life by the Sessions Court. This was affirmed in appeal by the High Court. During the trial and later in the appeal before the High Court, one of the defences raised and urged was that petitioner was a ,child' within the meaning of Section 2(d) of the Bihar Children's Act and he was not liable to be tried in the ordinary way. He claimed to be in his - and not completed - sixteenth year. That defence was not accepted by the Sessions Court and the High Court. The matter was carried up for special leave to this Court and that SLP was also dismissed.

3. The petitioner seeks to re-agitate the question in this writ petition under Article 32 of the Constitution urging that the trial and all the later proceedings emanating therefrom were nullities; that there was a violation of petitioner's fundamental right under Article 21 and that therefore the earlier proceedings are amenable to review in proceedings under Article 32.

4. We are afraid the assumptions underlying the petitioner's contention are unsound. There was no inherent lack of jurisdiction in the court that tried the petitioner.

If it had been established that at the time of the commission of the offence petitioner was above a particular age - sixteen years in the present case - the proceedings for his trial were with jurisdiction and proper. Even on the premise that a collateral challenge of this kind was permissible on the 510 ground that the trial of a child, otherwise than in accordance with the special procedure is a nullity, the specific basis on which the challenge to jurisdiction is raised is a factual one, whether the petitioner was under sixteen years of age at the relevant time. That was, in fact, or at least must be deemed to have been, held against the petitioner in the trial and in the hierarchy of appeals that followed as, indeed, this defence was particularly urged and rejected. The real question which is the basis of the attack on jurisdiction is a factual one, viz., whether petitioner was of a particular age at the time of commission of the offence. That was held against the petitioner and has assumed finality. That factual question cannot be re- agitated. The question, therefore, is not one of jurisdiction but proof of a fact which determined it and which had been decided earlier in a particular way. That cannot be a fresh foundation for a petition under Article 32 of the Constitution.

5. However, it is open to the petitioner to seek a review of the order of this Court in the special leave petition if such a review has not already been invoked and lost.

6. In this view of the matter, Shri Gopal Subramaniam sought leave to withdraw the writ petition and file an appropriate review petition. Leave is granted and the writ petition is dismissed as withdrawn with liberty to pursue the remedy of review.

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