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Allahabad High Court · body

1984 DIGILAW 1098 (ALL)

NASEEM v. STATE OF U P

1984-12-19

K.L.SHARMA

body1984
K. L. SHARMA, J. This is a criminal revision directed against the judgment and order dated 3-12-1994 passed by the Chief Judicial Magistrate, Juvenile Court, Meerut Region, Meerut in crime Case No. 563 of 1993 under Section 302, I. P. C. and S. T. No. 309 of 1994 whereby the learned C. J. M. has directed a fresh inquiry for determination of age of the revisionist, who is in jail. 2. I have heard Sri Ram Niwas Sharma learned counsel for revisionist as well as the learned A. G. A. and perused the material brought on record. 3. The learned counsel for revisionist has raised a legal question whether the learned C. J. M. has the jurisdiction to determine afresh the age of the accused who has been declared juvenile on Inquiry in the Sessions Trial by the Sessions Judge who has separated his case and referred it to the Juvenile Court for further action in accordance with Juvenile Justice Act, 1986. 4. The learned A. G. A. has submitted in reply that it is only the uvenile Court which has got jurisdiction under Section 32 of the Juvenile Justice Act, 1986 to make due inquiry as to the age of the accused and then record a finding stating his age whether the person concerned is a juvenile or not. He has further submitted that the learned Sessions Judge only recorded an opinion and does not have the power under the Juvenile Justice Act, 1986 to determine the age of the person for recording a finding that he is a juvenile. 5. In order to examine the powers of the Juvenile Courts and of the superior courts under the Juvenile Justice Act, 1986 (hereinafter to be referred as the Act ). It is necessary to refer to and reproduce the relevant provisions of the Act. The Act deals with neglected juveniles and delin quent juveniles with a view to advance the welfare of the neglected juveniles and to do justice with the delinquent juveniles for their rehabilitation in the society. By Section 2 (h), the Act defines a juvenile "a boy, who is not attained the age of sixteen years or a girl who has not attained the age of eighteen years". By Section 2 (h), the Act defines a juvenile "a boy, who is not attained the age of sixteen years or a girl who has not attained the age of eighteen years". The scheme of the Act is that the State Government may constitute by notification for specified area one or more Juvenile Welfare Boards for exercising the powers and discharging the duties conferred or imposed on such Board in relation to neglected juveniles under this Act : Section 4 (2) "a Board shall consist of a Chairman and such other members as the State Government thinks fit to appoint, of whom not less than one shall be a woman, and every such member shall be vested with the powers of a Magistrate under the Code of Criminal Procedure, 1973 (2 of 1974)". Section 4 (3) "the Board shall function as a Bench of Magistrates and shall have the powers conferred by Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be a Judicial Magistrate of the first class". 6. To deal with delinquent juveniles the State Government under Sec tion 5 of the Act may by notification constitute for any specified area one or more juvenile court for exorcising the powers and discharging the duties conferred or imposed on such courts in relation to a delinquent juvenile under this Act : Section 5 (2) "juvenile Court shall consist of such number of Metro politan Magistrates or Judicial Magistrates of the first class, as the case may be, forming a Bench as the State Government thinks fit to appoint, of whom one shall be designated as the Principal Magistrate ; and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metro politan Magistrate or, as the case may be a Judicial Magistrate of the first class. " Section 5 (3) "every Juvenile Court shall be assisted by panel of two honorary social workers possessing such qualifications as may be prescribed, of whom at least one shall be a woman, and such panel shall be appointed by the State Government " 7. Section 7 of the Act confers the powers on the Board and Juvenile Court to deal exclusively with all proceedings under this Act relating to neglected juveniles or delinquent juveniles, as the case may be. Section 7 of the Act confers the powers on the Board and Juvenile Court to deal exclusively with all proceedings under this Act relating to neglected juveniles or delinquent juveniles, as the case may be. There is provision for transfer of proceedings from one Juvenile Court to another court or from one Board to another Board. There is also provision for reference in the case of difference of opinion between a Board and a Juvenile Court to other Court of Session, Chief Metropolitan Magistrate or C. J. M. Where no Board or Juvenile Court has been constituted for any area, Sec tion 7 (2) authorises the District Magistrate or the Sub-Divisional Magistrate or any Metropolitan Magistrate or the Judicial Magistrate first class to exercise the powers of the Juvenile Court or the Juvenile Welfare Board in that area. 8. The most important provision relevant to the present controversy in this revision is contained in Section 7 (3) of this Act which reads as follows : "7 (3) The powers conferred in the Board or Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Session when the proceeding comes before them in appeal revision or otherwise. " 9. This provision makes it clear that the High Court and the Court of Session can exercise the powers conferred on the Board or Juvenile Court under this Act, not only in an appeal or revision but also in any other pro ceedings. For instance before the High Court, an application for bail by an accused person or an application under Section 482, Cr. P. C. or a writ petition of criminal nature by an accused person can be brought and if any question whether accused is a juvenile or not arises in that proceeding, the High Court can very well exercise all or any of the powers conferred by the Act on a Juvenile Court. Similary a court of Session can exercise all these powers not only in appeal or revision against the order of subordinate court including a Juvenile Court out also in any other proceeding like the bail application of an accused person who may claim bail on the ground that he is below 16 years or 18 years of age as the case may be, and is a juvenile within the meaning and for the purpose of the Act. The High Court or the Court of Session, as the case may be, may make an inquiry into the claim of the accused person that he is juvenile and after recording evidence reader a finding declaring the accused that he is a juvenile or not. If the High Court or the Court of Session holds an in quiry and declares that the accused is a juvenile, it can make further order to separate the case of the juvenile and refer to the Juvenile Court and can also grant bail to the juvenile or refer the bail application also to the Juvenile Court for grant of bail. However, if the High Court or the Court of Session as the case may be, immediately records its opinion without holding an inquiry on evidence that the applicant appears to be juvenile on the basis of visual perception or on the basis of some document and then directed the Juvenile Court to make an inquiry as to the age of the applicant whether he is a juvenile or not, only then the Juvenile Court on receipt of the records will proceed to hold an inquiry about the age under Section 32 of the Act. It is crystal clear that the Juvenile Court will not hold an inquiry again as to the age of the person whether he is a juvenile or not after the High Court or the Court of Session, as the case may be, has already held the inquiry and after receiving evidence has recorded a rending declaring the person as a juvenile. 10. The learned counsel for the revisionist has invited my attention to a decision of Delhi High Court in the case of Mohammad Lias v. Slate, 1993 (2) Crimes 542 : 1994 JIC 641 (Del ). In this case the petitioner was committed to the Court of Session for trial for the offence under Sections 452, 302, I. P. C. and he moved an application for bail before the learned Additional Sessions Judge on the ground that he was below 16 years of age on the date of com mission of offence. In this case the petitioner was committed to the Court of Session for trial for the offence under Sections 452, 302, I. P. C. and he moved an application for bail before the learned Additional Sessions Judge on the ground that he was below 16 years of age on the date of com mission of offence. While dealing with the bail application the learned Sessions Judge firstly held an inquiry to determine the age of the petitioner and after evidence he held that the petitioner was juvenile at the time of commis sion of offence and then directed that the record of the proceeding relevant to the petitioner be forwarded to the court of Juvenile Justice for trial according to law. When the case was forwarded to the Juvenile Court, it decided to hold an inquiry under Section 32 of the Act to determine the exact age of the petitioner on the date of alleged commission of offence. On holding inquiry on the basis of physical dental and radiological examinations and other evidence the Juvenile Court recorded a contrary finding that the petitioner was not a juvenile and consequently he rejected the bail application of the petitioner. This order was challenged by the petitioner before the Delhi High Court on the ground that the Juvenile Court had no power to hold a fresh inquiry to ascertain the age. In this connection the Delhi High Court examined the provisions of Sections 32 and 7 (3) of the Act as well as the decisions of the Calcutta High Court in the case of Sunil Das v. State of Bengal, III (1992) CCR 2524 and of Allahabad High Court in the case of Nadeem alias S. M. Nasrat Ali v. State of U. P. , I (1992) CCR 71 : 1992 JIC 173 and Mahboob Ahmad v. State of U. P. , Ill (1992) CCR 3077 (All): 1993 (1) Crimes (All ). After considering the provisions of the Act and the decisions of the two High Courts the Delhi High Court held that by Section 7 (3) of the Act the High Court and the Court of Session can exercise the power under the Act not only in an appeal or revision but also in other proceedings like a Sessions trial, application for bail etc. , and when the Sessions Court has held the inquiry and recorded a rending that the petitioner is a juvenile the Juvenile Court on receiving a reference cannot hold a fresh inquiry and will have to proceed further on the basis of the finding recorded by the Court of Session. 11. He further referred to the case of Mahboob Ahmad v. State of U. P. , 1993 (1) Crimes (All) 179 : III (1992) CCR 307 (All ). In this case, the facts were different inasmuch as the learned Sessions Judge merely recorded his opinion on his visual perception that the accused revisionist appears to be a major. The learned Session Judge had not held any proper inquiry on the question of the determination of the age of the Accused and therefore, this order of the learned Sessions Judge was challenged in the revision before the High Court. The revision was allowed by the High Court and the order of the learned Sessions Judge rejecting the plea of the accused was set aside and the learned Sessions Judge was directed to make a proper inquiry regarding the age of the accused-revisionist and take such, evidence as may be considered necessary and then to decide whether the accused is a juvenile or not and further proceed in accordance with law. However, in this case this Court did not consider the provision of Section 7 (3) of the Act for the simple reason that the power of the Court of Session to determine the age of a person claiming himself to be juvenile was not questioned. 12. In another case of Allahabad High Court namely : Prem Prakash v. State of V. P. , 1993 (1) Crimes 388 , a question was raised before the Sessions Court (Special Judge D. A. A.) Etah in S. T. No. 124 of 1991 that one of the accused person was juvenile. Considering the provisions of Sections 3, 24 and 32 of the Act, this Court held that the trial court could form an opinion that particular person is a juvenile, then separate his trial and send it to the Juvenile Court for further proceeding in accordance with the Act. In this revision no question was raised about the jurisdiction of the Sessions Court to hold an inquiry as to the age of the accused person whether he is a juvenile or not. In this revision no question was raised about the jurisdiction of the Sessions Court to hold an inquiry as to the age of the accused person whether he is a juvenile or not. Instead, this court directed the learned Sessions Judge to separate the trial of the accused person Sanjiv alias Chhabiram who appeared prima facie on the basis of evidence on record that he is a juvenile and then to refer the case of Sanjiv to the Juvenile Court for proceeding in accordance with law. 13. The learned A. G. A. on the other hand referred to the case of this Court in Kamlesh Kumar v. State of U. P. , 1994 (31) ACC 650 : 1994 JIC 237 (All), Considering the provision of Section 8 of the Act this Court held that under the provision of Section 8 of the Act the jurisdiction of determining the age of the accused on the date of occurrence vests in the Juvenile Court and not on the Court of Session before whom the question of age was raised. A perusal of this judgment shows that the provision of Section 7 (3) of the Act which expressly confers power of the High Court and the Court of Session was riot at all referred to and considered in this case -. Therefore, this is a judg ment per in curium and does not operate as a binding precedent on the legal question that the Court of Session has got no power to jurisdiction under the Act to determine the question of age of accused person who claims that he is a juvenile. Section 8 of the Act does not at all refer to the powers of the High Court or the Court of Session, It rather provides for the recording of an opinion about the age of an accused person by a Magistrate not empowered to exercise the powers of a Board or a Juvenile Court under the Act. Sec tion 32 of the Act refers to the presumption and determination of age of an accused person when he is brought before the competent Authority under any of the provisions of the Act. Section 2 (d) defines the Competent Authority so as to mean and include a Juvenile Court or any Court empowered by sub- sec tion (2) of Section 7 to exercise the powers conferred on a Board or Juvenile Court. Section 2 (d) defines the Competent Authority so as to mean and include a Juvenile Court or any Court empowered by sub- sec tion (2) of Section 7 to exercise the powers conferred on a Board or Juvenile Court. The powers of a Juvenile Court are those which have been expressly provided under the Act. Section 7 (3) of the Act also recognises the High Court and the Court of Session to exercise power of the Juvenile Court or Board under the Act in appeal, revision, or otherwise. If the High Court or the Court of Session has exercised the power conferred on the Board or the Juvenile Court under the Act, the competent authority cannot invoke the same power in respect of the same delinquent for the same matter under the Act on the principle of harmonious interpretation of the various provisions of the Act. 14. On considering the relevant provisions of the Act and the decisions of the Calcutta High Court and Delhi High Court, I am of the opinion that under Section 7 (3) of the Act, the power under the Act conferred on a Juvenile Court can also be exercised by the High Court or Court of Session in an appeal or revision or otherwise in any other proceeding either in the form of trial, bail application or application under Section 482, Cr. P. C. or even in writ jurisdiction. Consequently, the determination of age of accused person claiming himself to be juvenile under the Act can be determined on an inquiry by taking evidence in any appeal, revision or in any other proceeding either by the High Court or by Court of Session wherever such a question is raised and that Court is competent to decide the proceeding after recording a finding of the age of the accused person and if it is found necessary to refer the case of the accused hell to be a juvenile to the Juvenile Court, the latter will pro ceed on the basis of that finding that the accused had been held to be juvenile and deal with him in accordance with the Act, but it shall not hold fresh inquiry into the question of age for a fresh determination of ago under Sec tion 32 read with Section 8 of the Act. In other words, the Juvenile Court shall not make a fresh inquiry after a finding is recorded on the basis of the inquiry by either the High Court or the Court of Session. Reason is so obvious that the Act does not intend to have the finding of the superior court contradicted by the finding of the subordinate Court, The system of judicial administration depends on this judicial discipline that a sub ordinate Court shall act in conformity with and shall not act contrary to the findings, decisions and orders of the higher courts like the Court of Session or the High Court of the State. The intendment of the Act by constituting the special Court of Magistrate for dealing with the deliquent juvenile is made clear by express stipulation under sub-section (3) of Section 7 of the Act that the power conferred on the Board or the Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Session when the proceeding comes before them in appeal, revision or otherwise. 15. In the present case, the learned Sessions Judge in S. T. No. 309 of 1994 under Section 302,i. P. C. made an inquiry into the claim of the peti tioner Naseem accused of the offence of murder and after receiving evidence determined his age and declared him to be a juvenile under the Act. He accord ingly separated his trial from other co-accused person and forwarded to the Juvenile Court presided over by the C. J. M. Meerut for dealing with him in accordance with the Act. The learned Juvenile Court passed impugned order to make a fresh inquiry despite the inquiry held, finding recorded after evidence and declaration made by the Court of Session, for fresh determination of the age of the accused revisionist Naseem whether he is a juvenile or not. The view taken by the learned Magistrate of Juvenile Court is confined only to the provisions of Section 8 and Section 32 of the Act. He has not referred to the provision of Section 7 (3) of the Act. There is a difference between the opinion under Section 8 of the Act and determination of age by recording a finding on proper inquiry under Section 32 of the Act. He has not referred to the provision of Section 7 (3) of the Act. There is a difference between the opinion under Section 8 of the Act and determination of age by recording a finding on proper inquiry under Section 32 of the Act. It is not only the Juvenile Court which can exercise the power of determination of age under Section 32 of the Act but it is also the High Court and the Court of Session which can exercise the same power under Section 32 of the Act by virtue of express conferment of power on the High Court and the Court of Session under sub-section (3) of Section 7 of the Act. In view of the legal position enunciated above, the impugned order of the learned Juvenile Court dated 3-12-1994 for a fresh inquiry into the question of age of the same accused revisionist Naseem is without jurisdiction void and liable to be quashed. The finding of the learned Court of Session recorded for proper inquiry about his age is conclusive and binding on the Juvenile Court which cannot act to the contrary and has to deal with the accused revisionist Naseem as a delinquent juvenile and grant him bail on his bail application as juvenile under the provi sions of the Act. 16. For the aforesaid reasons this revision is hereby allowed and the impugned order dated 3-12-1994 passed by the Chief Judicial Magistrate, Juvenile Court, Meerut Region, Meerut in Case Crime No. 563 of 1993, under Section 302, I. P. C. , P. S. Dourala, District Meerut is hereby quashed and the learned Juvenile Court is directed to deal with the accused revisionist Naseem as a delinquent juvenile accused of the offence under Section 302, I. P. C. in case Crime No. 563 of 1993 P. S. Dourala, District Meerut and release him on bail as a juvenile without any further delay under Section IS of the Act and deal with him according to the relevant provisions of the Act. 17. Let a certified copy of the judgment be sent within a week to the Juvenile Court Meerut Region, Meerut for immediate action. 18. A copy of this order be also issued to the learned counsel on payment of usual fee within three days. Revision allowed. .