JUDGMENT : ( 1. ) THE petitioner claiming to be a juvenile within the meaning of section 2 (h) of Juvenile Justice Act, 1986, by filing this petition under section 482, Criminal Procedure Code seeks invocation of inherent powers of this Court so as to quash his order of commitment under section 209, Criminal Procedure Code requiring him to stand trial for a charge under section 302, Indian Penal Code amongst other offences alleged to have been committed by him. ( 2. ) ON 29-11-1986, the State through Police Purani Chhaoni filed a challan against the petitioner and two others alleging that they have been guilty of committing murder on 4-9-1986. In the challan, the age of the petitioner is shown as 18 years. On the same day, the learned Magistrate formed an opinion that the offence was triable exclusively by the Court of Session and hence committed the case accordingly. It appears that the Muddemal was not produced by the police and because the same was required to be sent to the Court of Session, for a few days the papers remained lying in the Court of J. M. F. C. Gwalior and the accused were remanded to custody by the J. M. F. C, The papers reached the Court of Session on 17-9-1987. In between the accused were ordered to be released on bail. Incidentally, it may be mentioned that the Petitioners order of bail was not on the ground of age on the contrary para 3 of bail order dated 16-1-1987 passed in Bail Application No. 16/86 by the Fourth Additional Sessions Judge, Gwalior mentioned the petitioners age to be 18 years. ( 3. ) ON 29-1-1987, the petitioners counsel moved an application before the J. M. F. C. stating therein that the age of the petitioner accused was less than 16 years and hence the case against him ought to be sent to Juvenile Court. On 24-8-1987, the. M. F. C. rejected the application saying that the accused stood committed to the Court of Session on 29-11-1986 and hence the application could not be considered by him. ( 4. ) THE petitioner preferred a revision to the Court of Session against the order dated29-11-1986 passed by the J. M. F. C. by order dated 2-7-1988, the Sessions Judge rejected the revision upholding the Judicial Magistrates reasoning. ( 5. ( 4. ) THE petitioner preferred a revision to the Court of Session against the order dated29-11-1986 passed by the J. M. F. C. by order dated 2-7-1988, the Sessions Judge rejected the revision upholding the Judicial Magistrates reasoning. ( 5. ) BEFORE the Court of Session, the case was taken up for hearing on 10 occasions between 17-9-1987 and 4-7-1988 both days inclusive. Charges were framed on 27-4-1988. The trial was to commence on 4-7-1988, but could not so commence because the process writer did not issue summons to the witnesses. On 4-7-1988, in the presence of all the accused including the petitioner, the Sessions Judge reposted an application, which is dated 2-7-1988 was filed before the Sessions Court stating that on the date of the incident the petitioner was less than 16 years of age and the case was liable to be transferred to Juvenile Court. In the application, the petitioner also claimed an inquiry and expressed his willingness to tender documentary and other evidence as to his age. This application bears an endorsement in the hand of an official of the Court which reads "put up with the case on 4-7-1988. " Either this application was not a part of the record attracting attention of the presiding officer when the order-sheet was written or it was not pressed, is an inference to be drawn from the fact that the application does not find any mention in the order-sheet recording the Court proceedings held on 4-7-1988. This petition has been filed on 8-8-1988, it is accompanied by the certified copies of the orders dated 2-7-1988 passed by the Sessions Court in Criminal Revision No. 118/87, order dated 24-8-1987 passed by J. M. F. C. in Criminal Original Case No. 569/86, order dated 4-7-1988 by Sessions Court in S. T. No. 169/87 and the application dated 2-7-1988 before the Sessions Court all referred to hereinabove. The prayer made by the petitioner, as pressed at the hearing of this petition is not only that the case be directed into his age, but that committed of the case to the Court of Session be also quashed as being illegal and without jurisdiction. ( 6. The prayer made by the petitioner, as pressed at the hearing of this petition is not only that the case be directed into his age, but that committed of the case to the Court of Session be also quashed as being illegal and without jurisdiction. ( 6. ) THE learned counsel for the petitioner submitted that though the committal order was passed on 29-11-1986, the file was not in fact, sent to the Court of Session and the accused were remanded to custody by J. M. F. C until they were enlarged on bail, hence it should be deemed that the case was not, in fact, committed and the J. M. F. C. should have dealt with and disposed of his application dated 29-1-1987 on merits. This argument cannot be accepted. Having ordered commitment of case to Court of Session on recording an opinion that the offence alleged to have been committed by the accused persons was triable exclusively by the Court of Session, the Magistrate before whom the accused were initially brought to appear became functus officio. Merely because the papers remained lying in the Court of Magistrate in spite of the order of commitment and they were not physically sent to the Court of Session resulting into several remands being made by the Magistrate would not destroy the legal efficiency of the committal order. At worst, it would be an irregularity curable under section 465, Criminal Procedure Code. The accused could have objected to the irregularity by insisting that the Magistrate did not any more have jurisdiction in ordering the remand or dealing with the case. They could also claim enlargement or refusal of remand. They did nothing so. The failure on the part of the accused persons including the petitioner in raising such an objection would attract applicability of sub-section (2) of section 465, Criminal Procedure Code as well and in any case it cannot be said that the petitioner any failure of justice. It was still open for him to raise an objection before the Court of Session which he has done by moving an application on 4-7-1988. ( 7. ) UNDOUBTEDLY the Juvenile Justice Act, 1986 as its preamble indicates, is a beneficial piece of legislation and has a laudable purpose behind. It was still open for him to raise an objection before the Court of Session which he has done by moving an application on 4-7-1988. ( 7. ) UNDOUBTEDLY the Juvenile Justice Act, 1986 as its preamble indicates, is a beneficial piece of legislation and has a laudable purpose behind. It is well settled with the pronouncement of the Apex Court in Gopinath Ghose v. State of West Bengal, AIR 1984 SC 237 , that a trial in violation of the provisions of such enactment would be illegal. The question still remains as to who has to raise an objection and claim benefit of trial by a special Court. This Court in Siddhu v. State, 1973 MPLJ 721 , while interpreting an enactment pan materia held "it is for the accused concerned or the co-accused to take this point (as to the juvenile age of the accused before the court and invite it before proceeding with the trial to accept straightway or to ascertain whether the age of one of the co-accused is below 16 years and then separate his trial from that of others. Though it is possible for a Court suo motu to decide that one of the accused persons before it is below 16 years and accordingly order a separate trial, in a sense it is a point for the accused to take. Whenever the legal consequences follow the factual position, the latter at all events has to be established by the person concerned. ( 8. ) THE Magistrate committed no error in rejecting the application dated 29-1-1987 by order dated 29-8-1987, because having passed an order under section 209, Criminal Procedure Code on 29-11-1986, it was functus officio. The learned Sessions Judge was equally justified in rejecting the revision on 2-7-1988. ( 9. ) ALL the problem has an easy solution if the petitioner appears before the Sessions Court who is seized of the trial and presses for adjudication of his application dated 2-7-1988 filed before the Sessions Court, which escaped adjudication on 4-7-1988 wittingly or unwittingly. There is no reason to assume that the Sessions Judge would not decide the application and give the benefit of the provisions of Juvenile Justice Act, 1986, if the claim comes to his notice. And, looked at from this angle, the petition under section 482 Criminal Procedure Code appears to be premature and misconceived. There is no reason to assume that the Sessions Judge would not decide the application and give the benefit of the provisions of Juvenile Justice Act, 1986, if the claim comes to his notice. And, looked at from this angle, the petition under section 482 Criminal Procedure Code appears to be premature and misconceived. Still this Court would not go by technicality and is inclined to pass appropriate orders since it is the case of an alleged juvenile and the facts requiring suitable directions have been brought to its notice. ( 10. ) WITH the law laid down in Gopi Nath Ghose (supra) and the dictum of Full Bench decision of this Court in State of M. P. v. Ramesh Nai and another, 1975 MPLJ 1 , it is-doubtless that with the advent of legislation like the Juvenile Justice Act, 1986 a juvenile can be dealt with exclusively in accordance with the provisions of such Act and jurisdiction of ordinary criminal Courts is taken away. This is the effect of section 7 and other provisions of the Act. What has to be done when a juvenile appears or is brought before the Court has to be gathered by reading sections 8, 18 and 32 of the Act together: "8. (1) When any Magistrate not empowered to exercise the powers of a Board or a Juvenile Court under this Act is of opinion that a person brought before him under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile he shall record such opinion and forward the juvenile and the record of the proceeding to the competent authority having jurisdiction over the proceeding. (2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile had originally been brought before it. " "18. (2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile had originally been brought before it. " "18. (1) When any person accused of a bailable or non-bailable offence and apparently a juvenile is arrested or detained or appears or is brought before a Juvenile Court such person shall notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal, or expose him to moral danger or that his release would defeat the ends of justice. (2) When such person having been arrested is not released on bail under sub-section (1) by the officer-in-charge of the police station, such officer shall cause him to be kept in an observation home or a place of safety in the prescribed manner (but not in a police station or jail) until he can be brought before a juvenile Court. (3) When such person i]s not released on bail under sub-section (1) by the Juvenile Court it shall instead of committing him to prison make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order. " "32 (1) Where it appears to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be. (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile and the age recorded by the competent authority to be the age of the person so brought before it shall for the purposes of this Act, he deemed to be the true age of that person. " ( 11. ) "competent Authority" has been defined in clause (d) of section 2 of the Act as a Board in relation to neglected juvenile and a Juvenile Court in relation to a deliquent juvenile, or a Court empowered under section 7 (2) if no juvenile Court has been constituted. A difference of phraseology used in the 2 sections indicates that under section 18 Juvenile Court has to be guided by what appears to be apparently the age of the juvenile in so far as bail and custody of juvenile is concerned. When it is a matter of initiating proceedings against a juvenile, either alleged or claiming to be so, the Magistrate has to form an opinion as to whether the alleged juvenile has attained the age of 16 years if a boy or 18 years if a girl. In both the cases the benefit of doubt shall go to the juvenile, so that the provisions of the Act may not be frustrated. Of necessity the formation of opinion under section 8 has to be based on some material though a fullfledged inquiry like a trial is not necessary. In Gopinath Ghose (supra) their Lordships of the Supreme Court laid down guiding law in these words: "we are of the opinion that whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below before proceeding with the trial or undertaking an inquiry an inquiry must be made about the age of the accused on the date of the occurrence. This ought to be more so where special Acts dealing with juvenile delinquent are in force. If necessary, the Magistrate may refer the accused to the Medical Board or the Civil Surgeon as the case may be, for obtaining creditworthy evidence about age. The Magistrate may as well call upon accused also to lead evidence about his age. Thereafter the learned Magistrate may proceed in accordance with law. " ( 12. If necessary, the Magistrate may refer the accused to the Medical Board or the Civil Surgeon as the case may be, for obtaining creditworthy evidence about age. The Magistrate may as well call upon accused also to lead evidence about his age. Thereafter the learned Magistrate may proceed in accordance with law. " ( 12. ) SECTION 32 vests the competent authority with a jurisdiction to make "due inquiry" as to the age of the juvenile making it obligatory to record such evidence as may be necessary and also to record a finding as to the age. This finding has been given a finality for the purpose of the Act. Needless to say that the finding of the competent authority shall prevail over what appeared to be apparent under section 18 or the opinion under section 8. Where a boy or girl is so below the prescribed age or so above the prescribed age as may not call for any determination, there would be no difficulty. The problem may arise only in border line case where one party asserts the accused to be a juvenile while the other party asserts that it is not so. ( 13. ) TAKING all the facts and circumstances of the case into consideration in the background that State alleged the petitioner not to be a juvenile while the petitioner claimed to be so, but only after the committal of the case, but before the trial could actually commence and yet did not press the objections the following directions would meet the ends of justice: (i) No fault can be found with the legality of the order dated 24-8-1987 passed by J. M. F. C. and the order dated 2-7-1988 passed by Court of Session in revision. The two orders are maintatained. (ii) The petitioner shall appear before the Court of Firth Additional Sessions Judge, Gwalior, before whom the Sessions Trial is pending on 26-9-1988 on which date the Court shall post the case for a date of hearing on which day the parties shall be at liberty to produce such material on which they wish to rely enabling the Court to form an opinion about the age of the petitioner. The Court may also collect such material. The principle laid down in Gopinath Ghose (supra) shall be followed. The Court may also collect such material. The principle laid down in Gopinath Ghose (supra) shall be followed. (iii) If the Court forms an opinion that the petitioner was a juvenile on the date of the offence, the petitioner shall be forwarded to the competent authority and the prosecution shall be directed to file separate challan against him before the competent authority. The committal of the petitioner to the Court of Session shall stand quashed. The Court of Session shall proceed ahead with the trial of the remaining accused persons. (iv) If the Court forms an opinion that the petitioner was not a juvenile on the date of the offence, it shall proceed ahead with the trial of the petitioner also. Order accordingly. The record of the Sessions trial shall be sent back post-haste along with a copy of the order.