Surjit Singh vs The State of Haryana and Others

Madan Mohan Punchhi, J.—This is a petition for revision of an order dated 24th August, 1982 passed by the Judicial Magistrate 1st Class, Karnal, whereby out of the five persons accused of offences under sections 307/452/148/149, Indian Penal Code, produced before him he committed three accused to the Court of Session and dealt with the remaining two accused in the following manner:

As a result, I hold that the accused Balvinder Singh and accused Amarjit Singh are less than 16 years of age. They are required to be tried by the Children Court. The prosecution is required to file separate challan. To come up on 4th September, 1982 for filing separate challan. Dated the 24th August, 1982

Sd/-... Judicial Magistrate 1st Class, Karnal

The Petitioner is the complainant. He has approached this Court primarily on the ground that the Judicial Magistrate 1st Class could not record such finding holding the aforesaid two accused to be minors, as the Court was not empowered to do so within the provisions of the Haryana Children Act, 1974 (hereinafter referring to as the Act). A doubt has arisen in my mind whether any Children Court had been set up u/s 4 of the Act. On query from the Director, Social Welfare Board, Haryana, at my askance, it has been intimated that Children Court has not yet been set up. Thus, it is obvious that the learned Magistrate has acted not as as Children Court itself but has rather referred the accused to a Court termed as "Children Court". It is on the this aspect of the case that the Learned Counsel for the Petitioner is emphatic that when there is no Children Court, the question of sending of the two aforesaid accused to that Court did not airse. In the situation, it is vehemently contended that the Magistrate was bound u/s 209 of the Code of Criminal Procedure to commit the accused to the Court of Session along with the other co-accused.

It would be seen from the broad line of the Act that the State Government is empowered to constitute Child Welfare Boards u/s 3, and Children''s Court u/s 4 of the Act. Sub-section (4) of Section 6 of the Act provides:

Where no children''s court has been constituted for any area, the powers conferred on it, by or under this Act, shall be exercised in that area by the judicial magistrate of the 1st class specially nominated by the Session Judge.

On the other hand, Section 7 of the Act provides procedure to be followed by a Magistrate not empowered under the Act and vice-versa. It would be worthwhile to quote it here:

7(1) When any magistrate not empowered to exercise the power of a Board or a children''s court under this Act is of the opinion that a person brought before him otherwise than for the purpose of giving evidence, is a child, he shall record such opinion and forward the child and the record of the proceedings to the competent authority having jurisdiction over the proceedings.

(2) The competent authority to which the record of proceedings is forwarded under Sub-section (1) shall hold the enquiry as if the child had originally been brought before it.

(3) When any children''s court is of the opinion that a person brought before it is not a child, he shall record such opinion and forward the person and the record of the proceedings to the court having jurisdiction over the proceedings.

(4) The court to which the record of proceedings is forwarded under Sub-section (3) shall hold the enquiry or trial, as the case may be, as if the person had originally been brought before it.

"Competent Authority" u/s 2(h) of the Act, in relation to delinquent children, is a Children''s Court constituted u/s 4 of the Act and where no Children''s Court has been constituted, any Court empowered under Sub-section (4) of Section 6 of the Act to exercise the powers conferred on a Children''s Court.

Now, it is the conceded position at the Bar that, in accordance with the order of the learned Magistrate, the separate challan file has gone to the Court of the Chief Judicial Magistrate, Karnal, for, seemingly, he is the Judicial Magistrate of the 1st Class specially nominated for the purpose by the Sessions Judge of the Division, as envisaged under Sub-section (4) of Section 6 of the Act. and it goes without saying that the order sought to be revised, was passed by the Judicial Magistrate 1st Class, as envisaged u/s 7(1) of the Act. Any observations made by the said learned Magistrate in his order with regard to the age of the accused is merely an opinion and not a finding. Though it is true that the order of the Magistrate is somewhat loose in this context, yet, read in the spirit of Section 7(1) of the Act, it has to be held that what he meant was that he was of the opinion that Balvinder Singh accused and Amarjit Singh accused were less than 16 years of age. That opinion being tentative, was sufficient to set the Act into motion. It is for the Children''s Court ultimately to record its final opinon under Sub-section (3) of Section 7 of the Act that the persons concerned brought before him were not children. Thereupon, it is required to send the matter to the Court having jurisdiction over the proceedings. In other words, his final opinion, that the aforesaid two accused persons were not children, would have the effect of his sending the case back to the learned Magistrate for their being committed to the Court of Session. But, at the present stage, that final opinion being not there, there is no occasion to disturb the impugned order merely because it contains a tentative opinion of the Magistrate, on which count the Petitioner is aggrieved.

For the foregoing reasons, this petition fails, recording a note of a clarificatory nature.