Ghulam Hassan Mir vs State

This revision petition is directed against the oidcr of the Sessions Jndge, Srinagar, dated 27th May, 1981 whereby he rejected the prayer of the

petitioner to be treated in accordance with the provisions of Section 20/24 of the Children Act.

It transpires from the record that for an occurrence witch took place on 17281, a challan was produced before the Judicial Magistrate,

Ganderbal for offences under sections 302/307/323./354/148/149 RPC against the petitioner and four others. The learned Judicial Magistrate

committed the said case for trial to the Sessions Court at Srinagar. In the Sessions Court, an application was moved on behalf of the petitioner with

the prayer that since he is a child, as defined under the Children Act 1970 his case be saparated and he be tried by the Children Act 2970 his case

be separated and he be tried by the Children Court. In support of that application, a School Leaving Certificate showing the date of birth of the

petitioner as 1465 was submitted before the Sessions Court. The lerrned Sessions Judge, however, rejected the prayer primarily on the ground

that on the date when the order of commitment was made as also on the date when the charges were to be framed, the petitioner was more than

16 years of age and hence the provisions of Sections 20 and 24 of the Children Act were not attracted.

Mr. Z. A. Qureshi, learned counsel for the petitioner has submitted that the view expressed by the Sessions Judge that the relevant date of

declaring whether an accused is a child or not is the date at the time of commitment or the framing of charge and not the date on which the offence

was committed, is an erroneous view.

That on the date of occurrence, which took place on 17281, the petitioner was a child within the meaning of Section 2 (d) of the J&K Children

Act 1970 is not in dispute. A plain reading of Section 2 (d) of the Act read with sections 20 and 24 of the Act makes it clear that a child, within the

meaning of Section 2(d) of the Act, cannot be committed to stand his trial in the court of Sessions (See in this connection 1981 S. L. J 140). The

view expressed by the learned Sessions Judge that th,; relevant date, is the date, when either the order of commitment is made or the date of the

charge, is not borne out from the provisions of the Act as a matter of fact, the reading of various provisions of the Act, shows that the intention of

the legislature was to reekoa the age on the date of the offence and at no other stage. In this view, I am supported by the observations of the

Supreme Court reported in AIR 1982 SC 685That being the position, it was obligatory for the learned Sessions Judge to have separated the case

of the petitioner from the cases of the remaining coaccused, and sent him up for enquiry and trial before the Children Court.

Since, the petitioner was a child on the date of the offence, the order of commitment made by the judicial Magistrate Ganderbal in so far as it

concerns him is against the provisions of the J&K Children Act 1970 and the said order deserves to be quashed and I do hereby quash it.

The case of the petitioner shall be enquired into by the, Chief Judicial Magistrate, Srinagar, exercising the powers of the Children Court and he

sha'1 dispose of the case in accordance with law. The petitioner is reported to be in the Judicial Custody. He shall be produced before the

Children Court on 18th June 1982 and the learned Chief Judicial Magistrate shall then proceed with the case in accordance with the provisions of

the children Act 1970.