Dhanna @ Kariya vs State of M.P.

Shacheendra Dwivedi, J.

This revision petition is directed against the order passed by Second Additional Sessions Judge, Guna, in S.T.B. 180/94, thereby the Court alter holding an enquiry into the age of the applicant held him not to be a juvenile, being of more than 16 years of age on the date of occurrence for which the offence was registered by the Police u/s 302/34 of IPC.

Senior Counsel Shri J. P. Gupta, appearing for the petitioner contended that the Juvenile Justice Act, 1986 for short the ''Act'') being a special legislation enacted to deal with the matters of juveniles, the Additional Sessions Judge not being empowered under the Act to hold any enquiry could not have held the enquiry into the age of the petitioner, as it is the exclusive jurisdiction of the Juvenile Court under the Act. Therefore, any enquiry held by the Sessions Judge or Additional Sessions Judge would be vitiated under the law.

In view of the legal problem posed for determination, the facts of the case are not material, yet a brief history of the Court proceedings after the arrest of the petitioner may be given. The petitioner on the allegation of having committed the murder of the deceased was arrested by Police. An application for bail was submitted by the petitioner in the Court of Session and a ground was also raised that since the petitioner was the juvenile, he could not be kept in custody. On such an objection, the learned Sessions Judge held an enquiry and found him to be of more than 1ft years of age at the time of the incident and rejected his bail application on the consideration of merits.

Thereafter, the applicant moved an application before the learned CJM Guna, invoking the provision of Section 32 of the Act. The learned CJM, found that since the petitioner has been held to be of more than 16 years of age at the time of alleged commission of offence, after the due enquiry by the Sessions Court on the objection of the petitioner at the time of the consideration of his bail application, there remained no occasion to make any enquiry.

After the case was committed to the Court of Session for trial, the objection about the age was once again taken by the petitioner, by filing an application u/s 32 of the Act, submitting that the petitioner could not be tried by that Court, since he was a juvenile. The learned trial Court on such objection further held an inquiry and by order dated 30.9.91 held on facts that the petitioner was not a juvenile, and therefore, the Court had the jurisdiction to try the petitioner for the alleged offence. After the order, the accused and the prosecution were heard on charge. The change was framed and the trial has been fixed for 23 rd and 24th of November, 1995, for the recording of the prosecution evidence.

However, an application was once again filed by the petitioner u/s 32 of the Act, which was again rejected by the trial Court on 22.4.95 for the reason that the enquiry was already held earlier by the Court and the petitioner was not found to be a juvenile. That order had gone unchallenged, yet the application was again repeated in the Court. It is the last order dated 22.4.95, which has been challenged by the petitioner in this Court.

Facts apart, this revision petition poses very important and interesting legal problems whether the Sessions Court or the trial Court could hold an enquiry regarding the age of the petitioner in view of the provisions of the Act.

It has been very forcefully contended for the petitioner by Senior Counsel Shri J. P. Gupta that the jurisdiction of holding the enquiry for the determination of the age of an accused, who claims himself to be a juvenile, is entirely with the Juvenile Court. The enquiry if held by any other Court would be vitiated under the law. It is urged that the provisions of the Act have been enacted for dealing with the matters of juvenile delinquent, and therefore, when an accused claims or appears to a Court to be a juvenile, he has to be referred to the Juvenile Court for its finding about his age, as that would decide whether he is to be governed by the provisions of the Act or by the general law.

The reproduction of the relevant provisions of Section 8 of the Act would be of much advantage :-

Sec 8. Procedure to be followed by a magistrate not empowered under the Act :-

(1) When any magistrate not empowered to exercise the powers of a Board of a juvenile Court under this Act is of opinion that a person brought before him under any of the provisions of this Act (otherwise then for the purpose of giving evidence) is a juvenile he shall record such opinion and onward the juvenile and the record of the proceeding to the competent authority having jurisdiction over the proceeding.

(2) The competent authority to which the proceedings is forwarded under sub-section (1) shall hold the enquiry as if the juvenile had originally been brought before it.

The competent authority has been empowered u/s 32 to hold an enquiry for the determination of age of an accused appearing to be delinquent juvenile. Section 32 of the Act may also be reproduced with profit:

(1) Where it appears to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile, and the age recorded by the competent authority to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person.

On the plain reading of Section 8 of the Act, as quoted above, when a person is brought before such Magistrate, who is not empowered to exercise the powers of Juvenile Court but is of an opinion that the person so brought may be juvenile, such person shall be forwarded to the Juvenile Court by him, after recording his opinion. Sub-section (1) of Section 8 lays down the procedure to he followed by a Magistrate, not authorised under the Act, to deal with the cases of children defined under the Act. u/s 2 (e) of the Act ''juvenile'' means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.

As observed by Apex Court is Sheela Barse (II) and Others Vs. Union of India (UOI) and Others,

...Really speaking, the trail of children must take place in the Juvenile Courts and not in the regular criminal Courts. There are special provisions enacted in various statutes relating 10 children providing for trial by Juvenile Courts in accordance with special procedure intended to safeguard the interest and welfare of children.

The expressions made by Apex Court imposed a duly on the State to so look after the children as to ensure full development of their personality. The Act endures to achieve the object of overall development and welfare of juveniles.

Under the Act, if the circumstances exists, firstly, the person brought before Magistrate appears to be child, secondly, he is brought before him under the provisions of the Act otherwise than for the purpose of leading evidence and lastly when the Magistrate is not empowered, then the Magistrate is required to record his opinion and to forward the child to the competent authority. Sub-Section (2) of Section 8 of the Act makes it obligatory on the authority to hold an inquiry u/s 32 of the Act. The provisions of Section are of vital importance as a duty is cast on the Juvenile Court to decide the age of such accused as such finding would determine whether the proceedings arc to he continued under the special provision of the Act in relation to the person brought before the competent authority for the purpose other than for giving evidence or he is to be tried under the general law. The section applies only then the competent authority that the person brought before it is juvenile and finality is attached to such an order, by the Act. Sub-section (I) of Section 32 is addressed to the competent authority which makes on it obligatory to make an inquiry as to the age of the person brought before it. Sub-section (2) lays down that after the competent Court has passed an order under the Act in relation to that person alter a due enquiry, any subsequent proof that the person is not juvenile would not render the order invalid.

Both the Sections anticipate production of a person before the Magistrate or the competent authority and when a Magistrate has no jurisdiction under the Act, he shall stay his hands and refer the person appearing to be a child to the competent authority and the competent authority on a person being brought before he would hold an inquiry into his age. But the provisions of the Act do not debar the Sessions Court from holding an inquiry, when before it an objection is taken by an accused that he cannot be tried by that Court, being a child.

The object of the Act is to provide special treatment for a delinquent child at the very grassroots of the proceedings. But where an objection is taken before the Sessions Court by the accused on being committed to it for trial or otherwise, the Sessions Judge has not prohibited from holding the inquiry. He is not required to send such accused to Juvenile Court for an inquiry into the age. Obviously, if it is found by the Sessions Court after the inquiry that the accused is a child, in that case, he shall be sent to the Juvenile Court to be proceeded Will under the provisions of the Act.

When the stage of the committal is crossed and the ease reaches the trial Court, the process is not to be reversed merely for finding out whether the accused, who claims himself to he a child at that stage, is a juvenile or not as there is no express prohibition

Shri J. P. Gupta, appealing for the petitioner, has placed implicit reliance on AIR 1936 253 (Privy Council) to contend that when the law provides a particulars mode for doing of a particular act in a certain way, it has to he done in that manner or not at all and on such contention it is pressed that as the provisions of the Act provide for an inquiry into the age by the competent authority, the inquiry is to he held by the competent authority alone and by none else.

It is difficult to accept the contention advanced. The doctrine is not attracted in the present situation. Although under the Act, the Magistrate not empowered under the Act is required to refer the person who is brought before him, to be competent authority for the determination of his age if he appears to be the child. The competent authority has to conduct the inquiry for the determination of age and the word ''brought'' appearing in the Section, has to be construed that if a person is brought before it by a Police Officer or by a voluntary organisation or the parents or guardian of the child or he has appeared voluntarily or has been forwarded to it by a Magistrate u/s 8 of the Act.

This Section only debars a Magistrate not authorised under the law firm holding an enquiry into the age, but it does not create an embargo on the jurisdiction of the Sessions Court and the High Court. Rather sub-section (3) of Section 7 confers the power on the High Court and the Court of Session to exercise the powers conferred on the Board of the Juvenile Court by or under the Act. It would be fruitful to reproduce sub-section (3) of Section 7 of the Act:-

(3) The powers conferred on the Board or Juvenile Court by or under tins Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.

(Emphasis supplied.)

Since the provision empowers the High Court and the Court of Session to exercise all powers which are conferred on the Juvenile Court or the Board, The enquiry made by Sessions Court about the age of the accused appearing or claiming to be a child, would not be vitiated under the Act. Section 9 of the Code of Criminal Procedure provides that an Additional Sessions Judge can exercise jurisdiction vested in the Court of Session if he is so appointed by the High Court. This would mean, the powers conferred upon the Sessions Court can also be exercised by the Additional Sessions Judge.

Therefore, the enquiry can be made under the Act by the Sessions Judge or for the above reason by an Additional Sessions Judge in order to find out whether the accused is a juvenile or not when the case is committed for trial.

In view of the above discussion, I have found no merit in the revision petition. It is, accordingly, dismissed.