State vs Shaban Sheikh & Ors.

This order will dispose of the cases No. 45/77.37/78 and 1/79.

The learned Additional Sessions Judge, Srinagar has made this reference. The facts which have led to this referance are that about eighteen

persons were proceeded against before the Committing Magistrate for offences under sections 302, 109, 447, 148 and 149 R.P.C.A joint enquiry

was held. It however .transpired that two of the accused which were under sixteen years of age and therefore their cases should have been dealt

with under the J&K Children Act. It was argued before the Additional Sessions Judge Srinagar that the joint enquiry held by the trial court and the

joint order of commitment were bad in law, therefore the entire proceedings as also the order of commitment were liable to so quassed. The

reference came up for hearing before Dr. Anand J, who has referred this case to the Division Bench. According to the learned Judge as the case is

of first impression and no authority of this court or of any other court is available on this point therefore he thought it proper that the reference be

heard by a larger bench for an authoritative pronouncement.

We have heard the learned counsel for the accused as also the learned Additional Advocate General appearing for the State.

The proposition canvassed by Mr. M. A. Qurashi is that the committing Magistrate could not hold a joint enquiry as two of the accused were of

the age group of sixteen. The Child en Act stands as a bar to the holding of joint enquiry. In that view of the matter the proceedings conducted

before the committing Magistrate as also the order of commitment were also not sustainable arid were liable to be quashed. We have given our

thoughtful consideration to this aspect of the matter. We are however of the view that the entire order of the accused were under the age 16 years

and therefore their cases should have been dealt with under the Children Act. Section 24 of the Children Act provides that no chid shall bJ charged

with or tried for, any offence togather with a person who is not a child. But there is sub clause 2 of section 24 which enables the court taking

congnizance of the case to direct spearate trials of the child and the other persons if the accused child and those who are not children are

proceeded against jointly by way of a challan. According to the preamble of the Children Act, the act is designed to provide for care, protection

maintenance welfare and rehabilitation of the neglected or delinquent children and also for the trial of delinguent children as mentioned in the Act.

Essentially this piece of legislation is meant for the welfare of children. Obviously those who are not children canot get benefit of this Act. Having

regard to section 24 (2) of the Children Act, we are of the opinion that the case of the two children could be separated from the rest of the

accused. We are of the opinion that in the case of the latter accused no prejudice wou'd be caused to them if the order of commitment is kept in

tact so far as they are cocerned.

The result is that the order of commitment as also the charges framed against the minor children named Mubarik Kumar and Akbar Sheikh are

quashed. The case will proceed as against the orther accused before the learned Additionl Sessions Judge, Srinagar. He is however directed to

take up the case at the earliest possible time and dispose it of as expeditiously as possible. As regards the two minor children whose case have

been separated from the rest, they will be proceeded against before the approprite forum.

We do not however intend to make an order on the bail application at this stage as we do not want to fetter the discretion of the Additional

Session Judge who is seized for the case. The learned Additional Session Judge will after considering the merits of the case dispose of the bail

application in accordence with law. If however the bail application is not disposed of by him within two months, the accusedpetitioners will be

entitled to move this court again.