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1983 DIGILAW 108 (PAT)

Md. Ekram v. State

1983-03-31

BINODANAND SINGH

body1983
JUDGMENT : Binodanand Singh, J. This application under section 482 of the Code of Criminal Procedure (hereinafter to be called as 'the Code') is for quashing the entire proceeding of G.R. Case No. 2369 of 1981 (T.R. No. 766 of 1981) under sections 380 and 411 of the Indian Penal Code pending before Shri M. Zafar, Judicial Magistrate, second class, Patna. The ORDER :dated 3.4.1982 passed by the said court, whereby the petition of the petitioner for being discharged has been rejected by the said court, is also sought to be quashed. 2. Patna Kotwali P.S. Case No. 0609, dated 13.6.81 was instituted on the same date at 8 a.m. against this petitioner and two others on the written report of the Accounts Officer, the Newspapers and Publications Ltd., Patna, for offences under sections 380 and 411 of the Indian Penal Code. The allegations, inter alia in the written report are that at about 3.30 a.m. in the previous night, this petitioner and two others entered into the press compound by scaling over the wan and while taking away metal dust wert caught by Md. Ismail and Hasan Mohammad who were the watchmen. From the written report it appears that the Kotwali Police was informed about this incident earlier on telephone. It has been alleged that the thieves including this petitioner were caught red handed with metal dust, 12 Kgs. in weight, worth Rs.170/-. It is also stated therein that they admitted their guilt before the informant and others. The police after investigation submitted charge-sheet against this petitioner and two others for their trial for the aforesaid offences. 3. The learned Chief Judicial Magistrate, Patna, on receipt of the charge sheet took cognizance against this petitioner and two others for the aforesaid offences by ORDER :dated 15.7.81 and transferred the case to the court of Shri K.B. Singh, Judicial Magistrate, second class, for disposal The Case subsequently came to the court of Shri M. Zafar aforesaid where the same is pending for trial. It appears that on 3.4.1982 a petition was filed on behalf of this petitioner before the trial court praying therein to discharge him on the grounds as mentioned in the petition, namely, that the petitioner was a child aged 10 years and that the offences as alleged by the prosecution were also not to be established from the evidence. It appears that on 3.4.1982 a petition was filed on behalf of this petitioner before the trial court praying therein to discharge him on the grounds as mentioned in the petition, namely, that the petitioner was a child aged 10 years and that the offences as alleged by the prosecution were also not to be established from the evidence. The learned court below after hearing the parties rejected the application by ORDER :dated 3.4.82. 4. Learned counsel submitted that the ORDER :of cognizance passed by the learned Chief Judicial Magistrate, and the trial of the petitioner by ordinary criminal court are illegal and without jurisdiction since the Bihar Children Act, 1980 (hereinafter referred to as 'the Act') already came into force with effect from 30.4.1982, The word "child" has been defined under clause (gha) of section 2 of the Act according to which a child is one who has not attained the age of 16 years. For ascertaining the age of this petitioner a report was called for from the Civil Surgeon, Patna, who has reported by his letter dated 17.2.83 that this petitioner clinically is aged about 14 years. Thus it is obvious that this petitioner is a child within the meaning of the said Act. But so far as the above submission of the learned petitioner counsel is concerned, admittedly no Children Court has been established in the State of Bihar uptill now. Subsection (3) of section 7 of the Act provides that in respect of the area for which Children Welfare Board or Children Court have not been established, the powers conferred by this Act on the Board or the Children Court shall be exercised by the District Magistrate or the Sub-divisional Magistrate or a Judicial Magistrate of the first class respectively, meaning thereby that the powers to be exercised by the Children Welfare Board is to be exercised either by the District Magistrate of that area or the Sub-divisional Magistrate and the power vested in the Children Court shall be exercised by the judicial Magistrate of the first class so long as the Children Court for that area is not established. As was already been stated that no Children Court has been established in the State of Bihar and so apparently under clause (ga) of subsection (3) of section 7 of the Act a Judicial Magistrate of the fist class has jurisdiction to exercise the powers conferred by the Act. The Chief Judicial Magistrate being a Judicial Magistrate of the first class it was well within his power to take cognizance for the offences as alleged by the prosecution against the petitioner, even if the petitioner is a child. So the above contention of the learned petitioner's counsel to this extent cannot be accepted. 5. So far as the next contention of the learned petitioner's counsel that the ordinary criminal court has no jurisdiction to try the case in which this petitioner is an accused, is concerned, this has also got to be rejected in view of the provisions laid down in clause (ga) of sub-section (3) of section 7 of the Act since no Children Court bas been established, as already stated. Of course, de trial of this petitioner by a Magistrate of the second class will be apparently without jurisdiction since, as pointed out above, according to clause (ga) of sub-section (3) of section 7 only a Judicial Magistrate of the first class has jurisdiction to exercise powers under the Act. 6. It has next been contended on behalf of the petitioner that the petitioner is a child within the meaning of the Act and the other two accused persons are not child, i.e., they are majors and under section 24 of the Act a child cannot be charged and tried along with the accused persons who are not child. It appears from the production report of all the three accused persons submitted by the Kotwali Police in the court of the Chief Judicial Magistrate that the other two accused persons may also be children within the meaning of the Act which, however, has to be determined by the trial court before the trial is taken up As pointed out above, under the Act only a Judicial Magistrate of the first class can Exercise powers under the Act. Hence the case which is pending before Shri M. Zafar, a Judicial Magistrate of the second class, may be recalled from his file and be transferred to a court of competent jurisdiction, in the administrative side. Hence the case which is pending before Shri M. Zafar, a Judicial Magistrate of the second class, may be recalled from his file and be transferred to a court of competent jurisdiction, in the administrative side. Obviously the ORDER :s passed by Shri Zafar will be deemed to be without jurisdiction and will have no legal force. From the records it appears that the trial is at its preliminary stage and no charge has been framed uptill now so the question of any illegality having been committed does not arise. 7. With the aforesaid observations, this application is dismissed.