State vs Nazir Ahamad

D.B. Lal, J.—Nazir Ahamad a juvenile offender under the age of 21 has been convicted by the Judicial Magistrate, First Class, Kangra, in two cases under Sections 457 and 380 of the I.P. Code. In one of the cases he has been sentenced to an imprisonment till the rising of the Court and in the second case he has been asked to give a bond without surety for keeping good conduct for a period of two years and in addition to that, he has been sentenced to imprisonment till the rising of the Court. This very accused Nazir Ahamad was released on probation of good conduct u/s 4 of the Probation of Offenders Act, 1958, by the Chief Judicial Magistrate, Kangra, sometimes before his conviction under the two cases, noted above. The Chief Judicial Magistrate had ordered for one surety in the sum of Rs. 500/- so that the juvenile offender be of good behaviour for one year. His further direction was that he has to remain under the supervision of the Probation Officer, Kangra district at Dharamsala. Since the juvenile offender committed the aforementioned two offences within this period of one year, a report was submitted to the Chief Judicial Magistrate for a proceeding against him u/s 9 of the Act. In that manner, the aforementioned two cases of conviction were brought to the notice of the Chief Judicial Magistrate and he chose to examine the record of those cases u/s 435 of the Code of Criminal Procedure.

As revealed by the reference order, the Judicial Magistrate, First Class, was not empowered u/s 29-B of the Code of Criminal Procedure to deal with the offence committed by the Juvenile offender Nazir Ahamad. As such the two orders of conviction made by the Magistrate were without jurisdiction. Apart from this, while dealing with the case of Nazir Ahamad who is decidedly under 21 years of age and was guilty of having committed an offence under Sections 457 and 380 of the I.P. Code, the Court could not pass any sentence of imprisonment on him unless it had recorded its reasons for doing so. This was the requirement of Section 6 of the Probation of Offenders Act, 1958. The learned Judicial Magistrate, First Class, has not recorded any reason for passing the sentence of imprisonment and for not dealing with the offender u/s 3 or 4 of that Act. Besides this, the order of the learned Magistrate of asking a bond from the minor accused without surety was by itself illegal because a minor cannot execute a bond and unless a surety is obtained, if a bond is submitted by him, the same would remain unenforceable. On these grounds, the learned Chief Judicial Magistrate is right in observing that the two orders of conviction need be quashed as in addition of these orders being without jurisdiction, the sentence of imprisonment passed against the offender was also uncalled for and even illegal u/s 6. This apart, the very order of asking for a personal bond from a minor accused is unenforceable.

The learned Advocate-General did not appear to contest the order of reference. The accused Nazir Ahamad was also served and he too has remained absent. For the reasons stated above, I do not discover any ground to take a different view of the matter. I would, therefore, accept the recommendation of the learned Chief Judicial Magistrate and would quash the two orders of conviction and sentence dated 15-5-1972 passed by the Judicial Magistrate, First Class, Kangra under Sections 457 and 380 of the I.P. Code against Nazir Ahamad in Case No. 46/1 and in Case No. 47/1 of 1972.

While dealing with the reference, the learned Chief Judicial Magistrate has pointed out some difficulty as no reformatory school seems to be in existence for youthful offenders. Verily if Magistrates are called upon to make orders of conviction against youthful offenders, which contingency may also arise while dealing their case u/s 9 of the Probation of Offenders Act, a reformatory school would be necessary for keeping them there as and when they undergo imprisonments. The State Government has to provide for such a reformatory school and in that connection the attention of the State Government may be invited by making a reference to them of paragraphs 5 and 6 of the judgment of the learned Chief Judicial Magistrate. The State Government may be requested to take such necessary action as it may deem fit in this regard.