Vikram vs State of Haryana

V.S. Aggarwal, J.

This is a petition filed by Vikram s/o Ram Kumar under Section 482 of Code of Criminal Procedure for quashing the orders dated 7.11.1984 passed by the Principal Magistrate, Juvenile Court and order dated 27.1.1995 passed by the learned Sessions Judge, Ambala.

To appreciate the question in controversy the important facts can be delineated. The petitioners alongwith others were arrested with respect to offences punishable under sections 302/201/404/34, Indian Penal Code, Police Station City Karnal. The petitioner alongwith others were produced before the Chief Judicial Magistrate, Karnal. Chief Judicial Magistrate, Karnal on 1.6.1994 passed the following order :

"Accused Parmod, Vikram and Rajesh are stated to be below 16 years of age. Ld. defence counsel have produced before me photocopies of Matriculation certificates of Vikram and Parmod, whereas birth certificate of Rajesh accused has also been produced which shows all three accused below 16 years of age and provisions of section 8 of Juvenile Justice Act. In view of this fact, I directed the Police Officer for producing these three accused before the Juvenile Court, which is being presided over by Chief Judicial Magistrate. They be produced in Juvenile Court, Ambala today. Papers be sent forthwith".

Thereafter the petitioner claiming himself to be a juvenile preferred an application with the learned Sessions Judge, Ambala for admitting him to bail. The same was heard and decided on 4.8.1994. While disposing the said application, learned Sessions Judge Ambala on 4.8.1994 observed that merely because the Chief Judicial Magistrate, Karnal had prima facie found the petitioner and his coaccused as juvenile, will not give the right to the petitioner to seek bail on the ground that he is a juvenile. It was observed further that a definite finding should be given by the Juvenile Court that petitioner is a juvenile.

While the petitioner was being produced in the Juvenile Court at Ambala on 7.11.1994, the said Court was informed that as against the petitioner and others, challan has been filed in the Court of Chief Judicial Magistrate, Karnal. Thereupon the Principal Magistrate, Juvenile Court, who is also the Chief Judicial Magistrate, Ambala directed that petitioner be produced before Chief Judicial Magistrate, Karnal on 8.11.1994. This led to the petitioner being produced before the Chief Judicial Magistrate, Karnal. Supplementary challan was filed as against the petitioner and others. The case has since been committed to the Court of Sessions. Applications were filed in the Court of Sessions at Karnal dated 7.1.1995 by the petitioner and another that they were minors on the date of alleged occurrence. Learned Sessions Judge at Karnal vide order passed on the said date (7.1.1995) adjourned the case for filing replies and documentary proof of the age of the petitioner and others. Case was adjourned to 16.1.1995. On 16.1.1995, dispute again arose about the age of the petitioner and learned Addl. Sessions Judge, Karnal passed the following orders :

"As regard Vikram, his date of birth in the School record is stated to be 10.11.1978 and according to the birth entry of Jagat son of Ram Kumar and Santosh as 17.2.1978. The difference in the two dates is that of 8 months and 23 days. So far as I know a woman cannot give birth to two children in normal circumstances in the period of less than 9 months. Normally I would not have given any time the these two accused in view of all this having happened in this case including the bail orders, the cancellation of the bail orders and the observations of the learned Sessions Judge, Ambala. But still giving the accused long rope, I give them opportunity to bring on record the evidence of their actual date of birth.

It is made clear to the accused that only one opportunity and one only is being granted to bring on record complete evidence of their date of birth. Now case to come up for evidence of the two accused on the aspect of their age on 4.2.1995."

Meanwhile as against the order passed by Chief Judicial Magistrate/Principal Magistrate, Juvenile Court, Ambala dated 7.11.1994 a revision petition was filed in the Court of Sessions at Ambala. Learned Sessions Judge, Ambala on 27.1.1995 dismissed the revision petition and held that it is yet to be determined as to if the petitioner is a juvenile. It was further held that learned Sessions Judge, Karnal would determine this question. Aggrieved by the said order dated 7.11.1994 of the Principal Magistrate, Juvenile Court and that of the 27.1.1995 passed by the Sessions Judge, Ambala, the present petition has been filed.

Juvenile Justice Act, 1986 (hereinafter described as the ''Act'') has been enacted by the Parliament to provide protection, case and reliability of the neglected juveniles. It is also for adjudication of certain matters pertaining to juveniles. The Act has been enacted with an laudable object. The lofty ideas and purpose is borne from the statement of objects and reasons leading to the enactment paragraph 1 of the same reads :

"A review of the working of the existing Children Acts would indicate that much greater attention is required to be given to children who may be found in situation of social maladjustment, delinquency or neglect. The justice system as available for adults is not considered suitable for being applied to juvenile. It is also necessary that a uniform, juvenile justice system should be available throughout the country which should make adequate provision for dealing with all aspects the changing social, cultural and economic situation in the country. There is also need for larger involvement of informal systems and community based welfare agencies in the care, protection, treatment, development and rehabilitation of such juveniles."

This is based on the leading case of Sheela Barse v. Union of India, AIR 1986 SC 1773. The Supreme Court before the enactment of the present Act observed that trial of children must take place in the Juvenile Courts and not in regular criminal courts.

With this background, one can take up the controversy in issue. Learned counsel for the petitioner urged that the petitioner had already been sent to the Juvenile Court at Ambala by the Chief Judicial Magistrate, Karnal and he alone would be competent to decide as to if the petitioner is a juvenile or not. With this main argument, he assails the impugned order whereby the petitioner was sent back to the Court at Karnal.

It would be fruitful to refer some of the definitions namely Section 2(d) defines the Competent Authority. Section 2(h) defines a ''Juvenile'' and Section 2(i) defines the Juvenile Court constituted under the Act, The said definitions are being reproduced below for the sake of facility :

"2. (d) "Competent Authority" means, in relation to neglected juveniles, a Board and, in relation to delinquent juveniles, a Juvenile Court and where no such Board or Juvenile Court has been constituted, includes any Court empowered under subsection (2) of section 7 to exercise the powers conferred on a Board or Juvenile Court. "Juvenile" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.

i) "Juvenile Court" means a Court constituted under Section 5."

It is crystal clear from the definitions reproduced above that competent authority is the one constituted and in relation to delinquent juveniles is a Juvenile Court. Delinquent juvenile means a juvenile who has been found to have committed an offence. He has to be under 16 years of age in case of a boy and under 18 years of age in case of a girl.

In addition to that section 7 of the Act lays down the powers of the Juvenile Court and Board where the Juvenile Court or Board has been constituted. In that event, notwithstanding anything contained in any law for the time being in force, but save as otherwise expressly provided that Juvenile Court will have the power to deal exclusively with all proceedings under the Act relating to delinquent juveniles, but subsection 3 to section 7 cannot be ignored and thus reads :

"(3) The powers conferred on the Board on Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Sessions, when the proceedings come before them in appeal, revision or otherwise."

Section 8 provides the procedure to be followed by a Magistrate not empowered under the Act. A combined reading of Sections 7 and 8 makes it clear that Court of Sessions and High Court are empowered to exercise the powers conferred on the Juvenile Courts under the Act when proceedings came before them in appeal, revision or otherwise. The expression ''otherwise'' present with meaning. Certain matters that arise before the Court of Sessions or the High Court incidentally can also be considered by virtue of sub section 3 to section 7 of the Act. Section 39 of the Act further makes the position clear that save as otherwise expressly provided under the Act while holding an enquiry under the provisions of the Act, procedure as may be prescribed shall be as under the Code of Criminal Procedure, 1973.

It is clear from aforesaid that trial of delinquent juvenile under the Act is prohibited by any other Court except the Juvenile Court. A juvenile cannot be tried jointly with a person who is not a juvenile. Certain benefits are only available to such juveniles and special status has been given to the delinquent. Therefore, each of the delinquent juvenile assumes importance. But while determined the age of the delinquent juvenile and before a person can take benefits of provisions of the Act, it is necessary that enquiry has to be held to determine the age. It is not merely the whim or wish of the Magistrate. The enquiry would necessarily contemplate recording of evidence and considering the documents produced.

In the present case, while the petitioner was sent by the Chief Judicial Magistrate, Karnal to the Juvenile Court at Ambala no evidence was recorded, not taking into consideration. It was therefore rightly expressed by the learned Sessions Judge Ambala while disposing the bail application of the petitioner that it could be enquired into if the petitioner was a juvenile or not. Before the enquiry could be conducted by the Court at Ambala, it appears that petitioner was sent to Karnal. In the said Court, the challan has been filed. The petitioner was committed to the Court of Sessions. The statement of facts given above shows that the Court of Sessions at Karnal is holding an enquiry as to if the petitioner is a juvenile or not. It is unfortunate that petitioner had been made to toss from one Court to another. About one year has been lost in this procedural tangle. It will be still more unfortunate if presently he is again sent to any other Court. Subsection 3 to Section 7 empowers the Court of Sessions to exercise all powers conferred on the Juvenile Court under the Act, when matter comes up before him in appeal revision or otherwise. Therefore, powers of the Juvenile Court in this regard to determine the case could be exercised by the Addl. Sessions Judge, Karnal. He is competent to determine the age of the petitioner. In fact, it appears that enquiry is already under way. It is, therefore, not a fit case where this Court should exercise its inherent powers or in any case retrace the steps taken. Needless to say that the result of the enquiry will determine as to if the petitioner is to be tried at Karnal or by the Juvenile Court. Consequently, I find that it is improper to quash the orders in the peculiar facts and circumstances.

For these reasons, petition being without merits, fails and is dismissed.