Sunil Kumar and Others vs State of Chhattisgarh

L.C. Bhadoo, J.—The accused/applications have preferred this criminal revision u/s 397 of the Cr.P.C, being aggrieved by the order dated 27.5.2003 passed in S.T. No. 298/2002 by the learned Additional Sessions Judge, Manendragarh, District Korea, by which the learned Additional Sessions Judge has framed the charges against the accused/applicants for the offence punishable u/s 307 of the I.P.C.

As per the prosecutor case, all the accused persons after forming common intention on the main road in front of Rajeshwar Singh Flour (Chakki) assaulted one Anantlal by sword with intention to kill him and on the report of Anantlal the case was registered by P.S. Manendragarh and after investigation charge sheet was filed against the accused/applicants for the offence punishable u/s 307 of the I.P.C.

At the outset the learned counsel for the applicants submits that he is not pressing this revision as far as applicant No. 1 Sunil Kumar is concerned. Counsel further submitted that as far as the question of Sushil Kumar @ Lala and Niraj Raj @ Golu are concerned, they were juvenile on the date of offence i.e. 19-1-2001 and in support of his argument counsel for the applicants submitted that the charge sheet submitted by the police itself shows the age of these two accused/applicants as 17 years. He further submitted that certified copy issued by the learned Additional Sessions Judge, Manendragarh also shows the age of these two accused/applicants as 17 years. Counsel further submitted that in spite of the mandatory provisions of the Juvenile Justice Act (Care and Protection of Children) Act, 2000, the accused persons are not being dealt with in accordance with the provisions of juvenile Justice Act, 2000 which came into force on 1st April 2001. Counsel further submitted that in view of the charge sheet of the police itself both these accused persons are juvenile and they should have been sent to the Juvenile Board for appropriate proceeding as per the Juvenile Justice Act, but the learned Additional Sessions Judge has not complied with the mandatory provisions of the Act and proceeded with the trial. In this regard the relevant provisions of Juvenile Justice Act are Sections 7 and 49 which reads as under: -

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 under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence), is a juvenile or the child, he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding.

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

Presumption and determination of age- (1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child 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 or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act be deemed to be the true age of that person.

The provisions of Section 7 of the Act which are extracted above provides that when any Magistrate not empowered to exercise the powers of the Board under this Act is of the opinion that a person brought before him under any of the provisions of this Act is a juvenile or child, he shall without any delay record such opinion and forward the juvenile or the child and record of the proceedings to the competent authority having jurisdiction over the proceeding. Sub-Section (2) of Section 7 of the Juvenile Justice Act provides that the competent authority to which the proceeding is forwarded under sub-section (1) which hold the inquiry as if the juvenile or the child had originally been brought before it.

The provisions of Section 49 of the Act prescribe the inquiry to be conducted by the competent authority in order to determine the age of the person.

Section 2(k) of the Juvenile Justice Act defines "Juvenile or child"; "Juvenile" or "child" means a person who has not completed eighteeth year of age. Section 2(g) of the Act defines "competent authority"; "competent authority" means in relation to children in need of care and protection, a Committee and in relation to juveniles in conflict with law, a Board. Board is defined u/s 2(c) of the Act; "Board" means a Juvenile Justice Board constituted u/s 4 of the Juvenile Justice Act. According to Section 49 the competent authority has to make due inquiry regarding the age of the person by taking all such evidence that may be produced.

It is not disputed that now the Juvenile Justice Board has been constituted in the State of Chhattisgarh as per the requirement of the Juvenile Justice Act. After coming into force of the Juvenile Justice Act the inquiry as contemplated u/s 49 of the Juvenile Justice Act ought to have been conducted by the Board.

It is not disputed that the Magistrate before whom these two accused persons were produced had not acted as per the provisions of the Section 7 of the Act and has not expressed his any opinion on the point as contemplated under this Section, simply proceeded with and committed the case to Sessions Court who in turn proceeded with trial and framed the charges.

The Hon''ble Apex Court in the case of Raj Singh Vs. State of Harayana, (2000) 6 SCC 759 has held:

Appellant was a juvenile being less than 16 years of age of the time of the occurrence and therefore, trial should have been held by Juvenile Court Appellant having been tried by Sessions Court his conviction is vitiated.

In view of this judgment, I have no opinion but to set aside the order dated 27-5-2003 by which the charges have been framed against the accused/ applicants.

In the result, this revision is partly allowed as far as applicants Nos. 2 and 3 namely Sushil Kumar and Niraj Rai are concerned and their case stands remitted to the Court of concerned Judicial Magistrate before whom charge sheet was filed against these two accused/applicants and the learned Magistrate shall now deal with in accordance with the provisions of Juvenile Justice Act, 2000.

The record be sent to the Judicial Magistrate by the Additional Sessions Judge and the turn in learned Judicial Magistrate will act according to the provisions of the Juvenile Justice Act, 2000.

As far as applicant No. 1 Sunil Kumar is concerned, the revision is dismissed.