JUDGMENT 1. - The petitioner has been brought before the Juvenile Court Kota for having caused the death of his sister-in-law Rita, after having made an attempt to rape her. He is facing enquiry for the commission of this offence. He moved an application before the Juvenile Magistrate that be be permitted to engage a counsel to appear before the court and cross examine the witnesses. A prayer was also made that the witnesses who have been already examined should be recalled for cross examination This application has been refused by the court on 19.12.87. No reasons have been given in the short order which has been made on the application itself. This miscellaneous petition is directed against this order. 2. The learned counsel for the petitioner has contended that the case against the petitioner, who is a juvenile, is a serious one and it is necessary that a full and fair enquiry be made and for this purpose a legal practitioner should be allowed to appear before the court. The learned counsel for the petitioner tried to argue that an A. P. P. is appearing before the court which means that the prosecution is represented by a law knowing person, but the accused has not been given this facility. However, the learned counsel for the complainant has shown it to be otherwise. No legal practitioner or A. P. P. is appearing for the prosecution. 3. The learned counsel for the petitioner has argued that the court in this case has cross examined, on its own, the witnesses, who according to the prosecution case have become hostile, but has not cross examined the other witnesses who have deposed against the petitioner. He has simply written that opportunity to cross examine was given but no question were put. This according to him amounts to denial of a right of a proper enquiry. 4. It is necessary to refer to the provisions of the Juvenile Justice Act, 1986 hereinafter referred to as the Act) for appreciating the position. This Act has been enacted to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to them. 4. It is necessary to refer to the provisions of the Juvenile Justice Act, 1986 hereinafter referred to as the Act) for appreciating the position. This Act has been enacted to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to them. Provision has been made for keeping the juveniles at Observation home during the pendency of the enquiry against them and for afterwards sending them to Welfare Home, Juvenile Home or special home wherever considered proper. Neglected juveniles are sent before a Juvenile of Welfare Board. A trial of a juvenile who has committed an offence is not to take place before the regular courts where other criminals are tried The trial is also referred to as an enquiry and this is held before the Juvenile Court. If it is found that the Juvenile has committed an offence he is called a delinquent and not a,convict or a guilty person. He is not sentenced to a term of imprisonment but is sent to a home set up under the Act where it is expected that he would be looked after so that he may get an opportunity of reforming and rehabiliating himself. When a juvenile accused of a non-bailable or bailable offence is brought before the Juvenile Court the court has to hold an enquiry in accordance with section 39 of the Act, which provides for a procedure as laid down for the trial of summons cases in the Code of Criminal Procedure. When after holding the enquiry. it is found that the Juvenile is a delinquent then he is to be sent to special home or after care organisation, where he is to be kept for a period in accordance with section 21 of the Juvenile Justice Act. 5. First of all it is necessary to impress that the proceedings before the Juvenile Magistrate are not to take place like a trial before the Judicial Magistrate The proceedings are referred to as an enquiry and this is to be conduct in a manner in which the proceedings do not appear to be a regular trial. A juvenile should be able to follow the proceedings and take part in it whenever necessary. It does not mean that the juvenile himself be asked to cross examine the witnesses. A juvenile should be able to follow the proceedings and take part in it whenever necessary. It does not mean that the juvenile himself be asked to cross examine the witnesses. What the Juvenile Court should do is to discuss the case with the juvenile in order to find out what is his version and when the witnesses are being questioned care should be taken to see that the court acts in fair manner so as to question the witnesses about the case of the prosecution as well as the juvenile. This can be done on the lines which have been mentioned by the juvenile as well as in the papers submitted by the police before the Juvenile Court. The concerned Magistrate should approach in the enquiry against the juvenile in the nature of a fact finding enquiry. He cannot just ask the juvenile to cross examine the witnesses and if he fails to put any questions then write down no cross examination. If the Juvenile Magistrate takes care to look into the version of the prosecution as well as the juvenile then the enquiry will not be one sided There has to some distinction between a Juvenile Magistrate and a Judicial Magistrate, and the proceedings before the two Magistrates, and this can be shown by the Juvenile Magistrate by his approach in the enquiry. 6. Now I may look into the provisions of the Juvenile Justice Act, 1986 which refer to the appearance of counsel in proceedings before the Juvenile Magistrate. Section 28 of the Act is relevant in this connection and by looking in to some reference may also be made to section 28 of the Rajasthan Children Act, 1970, which was the earlier provision. Two sections read as under : "28. Persons who may be present before competent authority.-(1) Save as provided in this Act, no person-shall he present at any sitting of a competent authority, except (a) any officer of the competent authority, or (b) the parties to the inquiry before the competent authority, the parent or guardian of the juvenile and other persons directly concerned in the inquiry including police officers and legal practitioners, and (c) such other persons as the competent authority may permit to be present. (2) Notwithstanding anything contained in sub-section (1), if at any siege during an inquiry, a competent authority considers it to be expedient in the interest of the juvenile or on grounds of decency or morality that any person including the police officers, legal practitioners, the parent, guardian or the juvenile himself should withdraw, the competent authority may give such direction, and if any person refuses to comply with such direction, the competent authority may have him removed and may, for this purpose cause to be used such force as may be necessary. (3) No legal practitioner shall be entitled to appear before a Board in any case or proceeding before it, except with the special permission of that Board." (from Juvenile Justice Act) 28. Persons who may be present before competent authority- (1) Save as provided in this Act, no person shall be present at any sitting of a competent authority, except:- (a) any officer of the competent authority, or (b) the parties to the inquiry before the competent authority, the parent or guardian of the child and other persons directly concerned in the inquiry including police officers, and (c) such other persons as the competent authority may permit to be present. (2) Notwithstanding anything contained in sub-section (1) if at any stage during an inquiry a competent authority considers it to be expedient in the interest of the child or on grounds of decency or morality that any person including the police officers, legal practitioners, the parent, guardian or the child himself should withdraw, the competent authority may give such direction. and if any person refuses to comply with such direction the competent authority may have him removed and may, for this Purpose, cause to be used such force as may be necessary. (3) No legal practitioner or public prosecutor shalt be entitled to appear before a competent authority in any case or proceeding before it, except with the permission of that authority." (from Raj. Children Act) A look at section 28 of the Children Act would show that it provides that no legal practitioner or public prosecutor shall be entitled to appear before the competent authority except with the permission of that authority. Children Act) A look at section 28 of the Children Act would show that it provides that no legal practitioner or public prosecutor shall be entitled to appear before the competent authority except with the permission of that authority. Reading section 28 of the Juvenile Justice Act it can he said that it lays a restriction on the persons who could be present at any sitting of the competent authority, but there are certain exceptions to this and the exceptions include the parent or guardian of the juvenile, police officer and the legal practitioner. Besides these persons the competent authority may permit other persons to be present. In other words section 28 of the Juvenile Justice Act is not similar to the provisions of the Rajasthan Children Act and allows legal practitioner and police officers to be present at the time of inquiry. It is only under sub-clause (2) that the competent authority may disallow appearance of these reasons if it considers it to be expedient in the interest of the juvenile or on grounds of decency or morality. Thus it can be said that the police officer and legal practitioner can be present and it is only in exceptional cases that the competent authority can give a direction that such persons shall not be present. In this connection sub-clause (3) of section 28 of the Juvenile Justice Act is also relevant because it provides that no legal practitioner shall be entitled to appear before a Board except with the special permission of that Board. Thus, this bar is only with regard to Board and is not applicable to Juvenile Court. The bar provided in subsection (3) cannot he made applicable to the court. It is only before the Board that special permission of the Board is necessary for the appearance of a legal practitioner and the same is nu, the position as regards the court. The juveniles who are taken before the Board are neglected juveniles, while juveniles who have committed offence are taken before the juvenile court Keeping the distinction of neglected juvenile and delinquent juvenile in view different procedures have been provided for appearance of the legal practitioner. The juveniles who are taken before the Board are neglected juveniles, while juveniles who have committed offence are taken before the juvenile court Keeping the distinction of neglected juvenile and delinquent juvenile in view different procedures have been provided for appearance of the legal practitioner. Hence it can be said that under section 28 of the Juvenile Justice Act legal practitioners are entitled to appear before the Juvenile Court and the order of the Juvenile Magistrate refusing this permission deserves to be set aside:- 7. It is not necessary for me to go into the provisions of Article 22 of the Constitution, which the learned counsel for the petitioner has tried to invoke. 8. Juvenile Justice Act came into force with effect from 1.12.1986 and the case of the petitioner shall be governed by the procedure prescribed under this Act as the incident out of which the case arises took place on 15.5.1987. 9. This petition is accepted and the Juvenile Magistrate is directed to allow legal practitioner on behalf of the petitioner in the proceedings before it and if necessary the witnesses who have already been examined should be recalled. At the same time the State will also be entitled to be represented by a police officer or a public prosecutor.Petition allowed. *******