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1996 DIGILAW 265 (MP)

SULTANSINGH v. STATE OF M. P.

1996-03-08

T.S.DOABIA

body1996
T. S. DOABIA, J. ( 1 ) SHOULD a Juvenile Court consist of the Chief Judicial Magistrate alone or of a Bench consisting of judicial officers as envisaged by Section 5 of the Juvenile Justice Act, 1986 (hereinafter referred to as the 1986 Act) read with Notification No. D. 1976-2359/xxvi-II-88. This is the only question which is required to be determined in this petition preferred under Section 482 of the Code of Criminal Procedure, 1973. ( 2 ) FACTS in brief be noticed. This petition has been preferred against an order dated 12th October, 1993. By this, a direction has been given by the Fourth Additional Sessions Judge, Gwalior, that the age of Sultansingh, the delinquent juvenile be determined by the juvenile Court. ( 3 ) THE learned counsel appearing for the petitioner submits that the age of the delinquent juvenile has already been determined by the Chief Judicial Magistrate, Gwalior and an Order to this effect was passed on 23rd of November, 1993. It has been indicated that the date of birth of Sultansingh is first of July, 1987. The crime is said to have been committed on 8th of April, 1993, It is accordingly argued that there is no need to have a fresh exercise. ( 4 ) IT further appears that this order dated 23rd of November, 1993, was not brought to the notice of the Fourth Additional Sessions Judge, Gwalior. The argument raised is that if the age of the delinquent juvenile has already been determined, then, there is no necessity to have fresh adjudication. ( 5 ) THE argument of the respondent's counsel is that the determination of age by the Chief Judicial Magistrate, on 23rd of November, 1993, cannot be said to be a determination by the juvenile Court. An argument has been raised that the juvenile Court stands constituted, and therefore, the determination of the age should be by the juvenile Court only. The argument raised is that Judicial Magistrate alone would not constitute a "juvenile Court". In this regard, it would be apt to refer to Section 5 of the 1986 Act. This Section reads as under :"5. Juvenile Courts- (1) Notwithstanding anything contained in the Cr. The argument raised is that Judicial Magistrate alone would not constitute a "juvenile Court". In this regard, it would be apt to refer to Section 5 of the 1986 Act. This Section reads as under :"5. Juvenile Courts- (1) Notwithstanding anything contained in the Cr. P. C. , 1973 the State Government may, by notification in the Official Gazette; constitute for any area specified in the notification, and or more juvenile Courts for exercising the powers and discharging the duties conferred or imposed on such Court in relation to delinquent juveniles under this Act. (2) A juvenile Court shall consist of such number of metropolitan 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 Cr. P. C. , 1973, on a metropolitan Magistrate or, as the case may be, a. Judicial Magistrate of the first class. (3) Every juvenile Court shall be assisted by a 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. " ( 6 ) IN pursuance of the provisions contained in Section 5 of the 1986 Act, juvenile Court stands constituted. A notification in this regard was issued by the State Government on 23rd of June, 1989. This continues to be in force with modifications. These modifications are relevant only vis-a-vis persons who are to assist the juvenile Court as social workers. The relevant portion of this reads as under :"no. D.-1976-2359-XXVI-II-88.- In exercise of the powers conferred by Section 5 of the Juvenile Justice Act, 1986 (No. 53 of 1986), the State Government hereby : (a) Constitutes the Juvenile Court specified in column (2) of the Schedule below for the areas specified in the corresponding entry in column (3) thereof; (b) Directs that it shall consist of one Chief Judicial Magistrate and one Civil Judge Class II and Judicial Magistrate Class I mentioned in the corresponding entry in column (4) of the said schedule; and (c) Appoints the honorary social workers as mentioned in the corresponding entry in column (5) thereto assist the Juvenile Court. The relevant entry with regard to Gwalior is at serial No. 9. It be noticed. It reads us under :s. No. Name of the Juvenile Courts and its Head Quartersjurisdiction (Revenue Districts)Designation of Judicial Magistratename of Honorary Social 9. Gwalior1. Gwaliorone Chief Judicial Magistrate1. Smt. Pushpa Malasureone Civil Judge Class-II and Judicial Magistrate Class-I. 2. Shri P. C. Jain ( 7 ) A persual of the preamble of the notification indicates that the Juvenile Court is to consist of one. Chief Judicial Magistrate and one Civil Judge, Class - II and Judicial Magistrate, Class - I. In addition to this, honorary social workers as indicated in column (5) are to assist the juvenile Court. These honorary social workers mentioned are (1) Smt. Pushpa Mala Sure and (2) Shri P. C. Jain. ( 8 ) THE question which has thus ultimately croppedup in this petition is whether the Juvenile Court is to consist of the Chief Judicial Magistrate alone or it is to consist of Chief Judicial Magistrate, one Civil Judge Class-II and Judicial Magistrate Class I. ( 9 ) THE preamble in the notification makes it apparent that the Court is to consist of two persons; one of them would be the Chief Judicial Magistrate and the other is Civil Judge, Class II and Judicial Magistrate Class-I. From time to time, this Court has been issuing notifications appointing Civil Judges by name and the Chief Judicial Magistrate without mentioning name since there is only one Chief Judicial Magistrate for the District of Gwalior. If above is the constitution of the Juvenile Court, then, the question arises as to whether the exercise of jurisdiction by the Chief Judicial Magistrate alone would be a valid exercise of power. Somewhat, similar question was considered, by the Kerala High Court, in the case reported as Sunil Kumar v. State, 1983 Cri LJ 99. The statute under consideration was the Children Act, 1960. The order under Sections 5 and 6 of the above Act, was signed by only one Magistrate. This was held to be bad. The observations made by the Court in para 8 be noticed. These read as under :"even when the Children's Court had been constituted and were working they have not been functioning in accordance with the provisions of the Children Act. This was held to be bad. The observations made by the Court in para 8 be noticed. These read as under :"even when the Children's Court had been constituted and were working they have not been functioning in accordance with the provisions of the Children Act. Going through the cases before us we notice that the orders in those cases disposed of by the Children's Court have been signed by only one Magistrate, namely; the Chief Judicial Magistrate, who was one among the Magistrates of the Court. May be he is the presiding Magistrate. Even so the proceedings cannot be under the signature only of one of the Magistrates as if he is the only Magistrate who has voice in the disposal of the case. This is sufficient to vitiate the orders sending these children to the Children's Home. "thus, the Division Bench of the Kerala High Court was of the view that if this (sic) would vitiate the order passed under the Act. ( 10 ) IT be seen that in Section 7 (2) of the I 986 Act there is a provision to the effect that a judicial Magistrate of the first class would act as a Juvenile Court where Juvenile Court has not been constituted in terms of Section 5 of the 1986 Act. As noticed above, a Juvenile Court stands constituted for the district of Gwalior and therefore, the determination has to be made by the Juvenile Court alone. ( 11 ) IN this view of the matter, the order passed by the Court below is upheld but on different reasoning. The determination of the age of the juvenile would now be done by the Juvenile Court which now stands constituted in terms of Section 5 of the 1986 Act. This petition is disposed of according parties to appear before the Juvenile Court on 18-3-1996. Order accordingly. .