Smt. Anjana Banerjee vs Aajad Kumar Ratna

S.L. Jain, J.

This is a revision u/s 397/401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ''Code'' for short) against the order dated 18-2-2002 passed by Sessions Judge, Satna, in Bail Application No. 80/2002, whereby respondent Aajad Kumar Ratna has been released on ad interim bail till the determination of his age for the purposes of Juvenile Justice Act.

The facts leading to this revision petition are that a charge-sheet for the offence punishable under Sections 363, 364A and 302 of IPC was filed against the respondent and one Saiyad Minjoor Abbas for kidnapping, demanding ransome and for committing murder of Baby Pushpita. The respondent moved an application before the Additional Sessions Judge, Satna, for grant of bail u/s 439 of the Code, claiming himself to be a juvenile. The learned Additional Sessions Judge, Satna, by his order dated 8-6-2001 granted the respondent ad interim bail till the determination of his age by the competent authority. In this order, the learned Additional Sessions Judge also directed that if on determination of age of the respondent, he is not found to be a juvenile, he shall surrender before the Court concerned.

Pursuant to the aforesaid order of the Additional Sessions Judge, Satna, enquiry regarding determination of age of the respondent was made by the JMFC, Maihar. The learned Magistrate found that the respondent was not a juvenile at the time of commission of alleged offence. After this finding the learned Magistrate committed the case to the Court of Sessions, Satna.

After committal of the case, the respondent filed an application before the Sessions Judge on 24-1-2002 for grant of bail and prayed that till the determination of his age by the Sessions Judge, he may be granted ad interim bail. Learned Sessions Judge allowed the prayer of respondent and granted him ad interim bail till the determination of his age as on the date of occurrence. The learned Sessions Judge also called upon the parties to lead evidence for determination of age of the respondent on the date of occurrence. It is against this order, that the petitioner, who is the mother of Ku. Pushpita, has filed this revision petition.

I have heard Shri S.K. Dwivedi, learned Counsel appearing for petitioner and Shri P.R. Bhave, learned Senior Counsel for respondent.

Shri Dwivedi, learned Counsel for petitioner submits that the order of the learned Sessions Judge is illegal and improper. As against this Shri Bhave, learned Senior Counsel for respondent supported the order.

It is submitted by Shri Dwivedi that pursuant to the order dated 8-6-2001, passed by Additional Sessions Judge, Satna, a full scale enquiry was made by the JMFC, Maihar and it was found by him that the respondent was not a juvenile. The order passed by the learned Magistrate is applicable u/s 37 of the Juvenile Justice Act, 1986 (hereinafter referred to as the ''Act of 1986'') and since no appeal was filed by the respondent against the said order of the Magistrate determining the age of the respondent on the date of occurrence, that order becomes final and, therefore, the learned Sessions Judge had no jurisdiction to make a parallel de novo enquiry regarding determination of age of the respondent on the date of commission of offence.

While dealing with this argument, I think it proper to add that in this case, the offence is alleged to have been committed on 29-3-2001. The Act of 1986 has been repelled by the Juvenile Justice Act, 2000 (hereinafter referred to as the ''Act of 2000'') which has come into force with effect from April 1, 2001. Therefore, the provisions of the Act of 1986 shall be applicable and anything done or any action taken under the Act of 1986 shall be deemed to have been done or taken under the corresponding provisions of Act of 2000. Corresponding provisions of Section 32 of the Act of 1986 are contained in Section 49 of the Act of 2000 and corresponding provisions of Section 37 of the Act of 1986 are contained in Sections 52 of the Act of 2000.

Section 32 of the Act of 1986 contemplates full dress enquiry for deciding as to whether an accused on the date of offence, was a juvenile or not. Learned Magistrate made a detailed enquiry by affording opportunity to parties to adduce oral and documentary evidence and also giving them right of cross-examination. Sub-section (2) of Section 32 of the Act of 1986 specifically provides that the age recorded by the competent authority for the purposes of the Act be deemed to be the true age of that person. Section 37 of the Act of 1986 makes provisions for the appeal against the order of competent authority, before the Court of Session. The period of limitation prescribed for such an appeal is thirty days. Undisputedly, no appeal has been filed by either party u/s 37 of the Act of 1986, therefore, the age determined by the JMFC, Maihar shall be deemed to be the true age of the respondent on the date of commission of offence.

Shri Bhave, learned Senior Counsel appearing for respondent, submitted that it is not only the Juvenile Court which can exercise the powers for determination of the age u/s 32 of the Act of 1986, but the High Court and Court of Session also can exercise the same powers. Sub-section (3) of Section 37 of the Act of 1986 provides that powers conferred on the Board or Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Session, when the proceedings comes before them in appeal, or revision or otherwise, but the High Court and the Court of Session can exercise jurisdiction regarding determination of age if the Juvenile Court does not determine the age u/s 32 of the Act of 1986. If the respondent was not satisfied with the order of JMFC regarding determination of his age, he was at liberty to file an appeal or revision against the order but he has not availed that liberty. Therefore, the age determined by the competent authority, i.e., the Juvenile Court shall be deemed to be true age of the respondent and thereafter, no full dress enquiry by the Sessions Judge in that regard is permissible for the purposes of considering the bail application.

In view of the above discussion, this Court is on the view that till the order of Juvenile Court passed u/s 32 of the Act of 1986 is set aside by the Sessions Court or the High Court in appeal u/s 37 or revision u/s 38 of the Act of 1986, the order passed by the competent authority is final. Therefore, the learned Sessions Judge had no jurisdiction to direct fresh enquiry regarding determination of age of the respondent.

Accordingly, the revision is allowed. The order impugned passed by Sessions Judge, Satna, directing fresh enquiry regarding determination of age of the respondent on the date of commission of offence and granting him ad interim bail stands set aside.