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1987 DIGILAW 469 (ALL)

Madan Lal v. State

1987-04-20

K.NATH

body1987
JUDGMENT K. Nath, J. - This revision u/s 401 read with Section 482, Code of Criminal Procedure has been filed against the order dated 4-4-87 passed by the learned Sessions Judge, Pratapgarh, whereby he cancelled the bail granted to the revisionist Madan Lal by the Juvenile Court of Pratapgarh under the U.P. Children Act, 1951 and directed the case against the revisionist to be heard by the Chief Judicial Magistrate, Pratapgarh, in accordance with law. 2. It appears that Madan Lal is the sole accused for offence punishable u/s 302, IPC, allegedly committed by him on 4-4-86. He surrendered in the Court of the Chief Judicial Magistrate on 10-4-86 and was given judicial remand. Subsequently, he moved the Juvenile Court for grant of bail on the ground that he was a child within the meaning of U.P. Children Act (in short the Act). The application was rejected. 3. The Juvenile Court entered upon the question as to whether the revisionist was or was not a child within the meaning of the Act. Evidence was produced before him, both on behalf of the revisionist as also on behalf of the prosecution. The revisionist was also produced before the Juvenile Judge On a consideration of that material, the Juvenile Judge came to the finding that the revisionist was below 16 years of age and therefore was a child. However, he dismissed the application for bail on the ground that the nature of the offence committed by him was extremely brutal and inhuman. 4. The revisionist then filed a second bail application. That application was allowed by the learned Juvenile Judge on 22-8-86. 5. The informant, whose son had been murdered, then moved the Court of Sessions for cancellation of bail. The learned Sessions Judge held that the Juvenile Judge adopted illegal procedure. He observed that the revisionist had himself surrendered before the Chief Judicial Magistrate to determine in the first instant u/s 3(2) of the Act whether he was a child or not and if found to be a child to refer him to the Juvenile Court. He observed that the order passed by the Juvenile Judge was capable of being challenged in revision before him because the Juvenile Judge is a criminal Court and all criminal Courts are subordinate to the Sessions Court for the purposes of Sections 397 and 401 Code of Criminal Procedure. He observed that the order passed by the Juvenile Judge was capable of being challenged in revision before him because the Juvenile Judge is a criminal Court and all criminal Courts are subordinate to the Sessions Court for the purposes of Sections 397 and 401 Code of Criminal Procedure. He has also referred to the provisions of Section 62 of the Act and observed that the Chief Judicial Magistrate could have forwarded the Petitioner to the Juvenile Court having jurisdiction. On this basis he passed the impugned order. 6. I have heard the learned Counsel for the revisionist and the learned State Counsel only on the question whether a revision could be maintainable in the Court of Sessions. I have not found it necessary to enter upon the question whether or not the revisionist was in fact a child which could have made the provisions of the Act applicable to him consequently on opinion is expressed upon the finality or otherwise of the finding of the Juvenile Court about the revisionist being a child. The crux of the matter is that the Sessions Judge did not have jurisdiction to entertain a revision u/s 397, Code of Criminal Procedure in view of the fact that as a matter of fact the Juvenile Court exercised the jurisdiction in the case, since the Juvenile Court Acts under the Act the remedy in respect of the orders of the Court lies u/s 79 of the Act. Sub-section (1) of Section 79 specifies that an appeal shall lie from an order made by the Court under specified sections differently to the Sessions Judge or to the High Court. Sub-section (2) says that an order passed under the Act and not subject to appeal under Sub-section (1) may be revised by the High Court. An order of appeal is not an applicable order u/s 79(2) of the Act. 7. The provisions of the Act, including Section 79 are special provisions of procedure to which the provisions of Section 5 of the Code of Criminal Procedure would apply. Section 5 runs as follows: Nothing contained in this Code shall, in the absence of the specified provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 8. Section 5 runs as follows: Nothing contained in this Code shall, in the absence of the specified provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 8. It is clear that the U.P. Children Act is a special or local which applies to children when they are sought to be tried for committing an offence. Section 60(1) of the Act clearly says that save as otherwise provided the Act itself where a Juvenile Court has been established for any local area sue Court shall deal all cases in which a child is charged with the infringement of law. It cannot be doubted that a child who is charged with committing an offence punishable u/s 302 is charged with so his case has to be dealt with only by the Juvenile Court, Such Court competent to grant bail as well as to refuse bail in view of Sections 24 and 25 of the Act. It is clear, therefore, that if the revisionist was a child within the meaning of the Act, grant or refusal of bail and remedy by way of revision against it could be available only in accordance with the provisions of Section 79 of the Act and not u/s 397 and 401, Code of Criminal Procedure. It also appears to me that since an order of bail is an interlocutory order, the Sessions Judge could not have entertained a revision against the grant of bail in view of Section 397(2) of Code of Criminal Procedure. The cases of Thakur V. Hariprasad Vs. State of A.P., (1976) 2 APLJ 51 and Amar Nath and Others Vs. State of Haryana and Another, AIR 1977 SC 2185 may be seen in this connection. 9. It also appears to me that even if the order of Juvenile Court was without jurisdiction, it cannot be ignored or treated as non-est. Indeed one of the grounds on which a revision petition may be entertained generally is the want of jurisdiction of the lower Court. The order of the Juvenile Court therefore would be required to be set aside by means of a properly constituted revision u/s 79(2) of the Act. 10. Indeed one of the grounds on which a revision petition may be entertained generally is the want of jurisdiction of the lower Court. The order of the Juvenile Court therefore would be required to be set aside by means of a properly constituted revision u/s 79(2) of the Act. 10. This being the legal position, the impugned order dated 4-4-1987 of the learned Sessions Judge was without jurisdiction and this revision must succeed I have already mentioned that no opinion is expressed upon the question whether not, as a matter of fact, the revisionist was child within the meaning of the Act. I also do not express any opinion on the question whether or not State or the informant may still be entitled to file revision before this Court u/s 79(2) of the Act. 11. In the result, the order dated 4-4-1987 of the learned Sessions Judge, Pratapgarh in Criminal Revision No. 115 of 1986 is quashed, and the order of bail to the Revisionist granted by the Juvenile Court is restored.