Judgment.- The Railway Police, Vijayawada, apprehended several individuals who were found to be wandering aimlessly on the Railway platform not having any home or settled place of abode or visible means of subsistence and without being under supervision of parents or guardian. The Sub-Inspector of Police brought them before the Juvenile Court, Vijayawada, and filed charge-sheets against them for action under section 29 of the Madras Children Act (IV of 1920) (hereafter referred to for convenience as the Act). The learned Magistrate registered the cases as mentioned below: S. No. High Court Crl. R.C. No. Juvenile Court J.C. No. Age (as stated by the Magistrate) in judgment. Date of the order of the Juvenile Court. Remarks. 1. 768/1960 255/1959 14 years 18-12-1959 Committed to Senior Certified School, Chingleput under section 29(1) for a period of three years. 2. 769/1960 325/1959 14 years 19-1-1960 Do. 3. 770/1960 254/1959 14 years 12-1-1960 Do. 4. 771/1960 328/1959 14 years 29-12-1959 Do. 5. 772/1960 324/1959 14 Years 29-12-1959 Do. 6. 773/1960 275/1959 14 Years 10-11-1959 Do. 7. 774/1960 252/1959 14 years 29-9-1959 (Original order.) Committed to Junior Certified School, Bellary, under section 29(1) for a period of three years. 20-11-1959 (Modified order.) Committed to Junior Certified School, Chingleput, under section 29(1) for a period of three years. 8. 775/1960 341/1959 14 years 8-12-1959 Committed to Junior Certified School, Chingleput, under section 29(1) for a period of three years. In each case, the learned Magistrate read over the charge to the individual concerned and explained to him according to section 242, Criminal Procedure Code. The individual admitted that he was wandering about. The learned Magistrate thereupon held that the individuals should be detained in a certified school. She did not hold any inquiry regarding the age, but in the judgment she stated the age in one sentence. For example, in J.C. No. 255 of 1959, the learned Magistrate stated: “The age of the boy is 14 years”. Accordingly, she committed all the persons to the Senior Certified School, Chingleput, for a period of three years except in J.C. No. 252 of 1959. In that case, the Magistrate (Srimati S. Seetharamamma) declared the age of the individual as 14 years and directed him to be detained in Junior Certified School, Bellary. When the individual was produced in that school, the Headmaster refused to admit him on the ground that he had already attained 14 years. In that case, the Magistrate (Srimati S. Seetharamamma) declared the age of the individual as 14 years and directed him to be detained in Junior Certified School, Bellary. When the individual was produced in that school, the Headmaster refused to admit him on the ground that he had already attained 14 years. Thereupon, the Magistrate (Srimati P. Lalita Bai) passed a fresh order, dated 20th November, 1959, committing the individual to Senior Certified School, Chingleput. Subsequently, Srimati Seetharamamma, the Magistrate of the same Juvenile, Court, sent a letter, dated 22nd November, 1960, to this Court saying that in the eight cases listed out, the individuals concerned were committed to Senior Certified School instead of the Junior Certified School by oversight and requesting orders of this Court for transfer of the juveniles from the Senior Certified School, Chingleput, to Junior Certified School, Hyderabad. One of the cases listed out by her is J.C. No. 252 of 1959. Obviously, the Magistrate did not notice as to what had happened in that case. The same Magistrate who made reference in that case, namely, Srimati Seetharamamma had passed the original order; dated 29th September 1959, declaring the age of the individual to be 14 years and committing him to Junior Certified School, Bellary. That order could not be given effect to as it was wrong and the subsequent order, dated 20th November, 1959, committing the individual to senior certified school was passed by Srimati P. Lalita Bai. On the reference received from the learned Magistrate, this Court registered these Criminal Revision Cases and called for the remarks of the learned Additional Sessions Judge, Krishna at Masulipatam, in its Official Memorandum Roc. No. 7738/60 B1, dated 30th November, 1960. The learned Additional Sessions Judge, by his report, dated 15th December, 1960, sent his detailed remarks on the relevant aspects of each case. Notices were issued to the individuals in each case. They were duly served on all of them except the individual concerned in Criminal R.C. No. 773 of 1960 (J.C. No. 275 of 1959). No one appeared on behalf of those individuals in this Court. I have heard the learned Public Prosecutor on behalf of the State. Notices were issued to the individuals in each case. They were duly served on all of them except the individual concerned in Criminal R.C. No. 773 of 1960 (J.C. No. 275 of 1959). No one appeared on behalf of those individuals in this Court. I have heard the learned Public Prosecutor on behalf of the State. Section 3 of the Act runs thus: “In this Act unless there is anything repugnant in the subject or context- (1) ‘child’ means a person under the age of fourteen years and when used in reference to child sent to a certified school applies to that child during the whole period of detention, notwithstanding that the child attains the age of fourteen years before the expiration of that period; (2) ‘young person’ means a person who is fourteen years of age or upwards and under the age of sixteen years; (3) ‘youthful offender’ means any person who has been convicted of an offence punishable with transportation or imprisonment and who at the time of such conviction was under the age of sixteen years. ******* (5) ‘certificed school’ means a school established or certified under this Act. (6) ‘junior certified school’ means a certified school for the training of children. (7) ‘senior certified school’ means a certified school for the training of youthful offenders.” Section 24(b)of the Act states the period for which a child can be sent as tilt the child attains the age of 16 years. Section 29(1) provides that an authorised person (in this case Railway Sub-Inspector of Police) may bring before a Court any person apparently under the age of fourteen years. In section 29(1), it is not specifically mentioned that the order to be passed can be only regarding a child. But, the following facts make it clear that the order under that sub-section can be passed by the Court only regarding a child, though the authorised person can bring before the Court any person apparently under the age of 14 years and that it is for the Court to ascertain the real age (as distinct from apparent age) under section 37. In section 29(1)(c) the person brought before the Court by an authorised person is referred to as ‘child’. In section 29(3) it is indicated that the individual concerned in section 29(1) is a ‘child’. The provision in section 29(1) is for sending child to a Junior Certified School. In section 29(1)(c) the person brought before the Court by an authorised person is referred to as ‘child’. In section 29(3) it is indicated that the individual concerned in section 29(1) is a ‘child’. The provision in section 29(1) is for sending child to a Junior Certified School. Sub-sections (1) and (6) of section 3 make it clear that a person who can be sent to a ‘Junior Certified School’ is a child. If the person is under 14 years of age, the Court may order him to be sent to Junior Certified School under section 29(1) or it may commit him to suitable custody until he attains the age of 16 years or for any shorter period by order under section 29(2). The Court may also make provision under section 29(4) for supervision by a person named by Court. If the person is not under 14 years of age, but is of 14 years or upwards and under 16 years i.e., a young person as defined in section 3(3), the authorised person (Sub-Inspector) cannot bring the individual for action under section 29(1). He may bring him before Court under section 29(3) and the Court may pass order committing him to suitable custody till he attains the age of 16 years or for any shorter period. A young person against whom an order is made under section 29(3) cannot be treated as a youthful offender as defined in section 3(3). The Court cannot send him to Senior Certified School as it is not meant for receiving young persons contemplated under section 29(3) as they are not ‘youthful offenders’. The position is different from a young person against whom an order is made under section 30; this is because of the Explanation to that section. The result is that, in any case, whether the person is a child or a young person, he cannot be sent to Senior Certified School under section 29. It has to be decided with reference to age whether the person concerned in each of the present cases ought to be dealt with under section 29(1) or under section 29(3). The result is that, in any case, whether the person is a child or a young person, he cannot be sent to Senior Certified School under section 29. It has to be decided with reference to age whether the person concerned in each of the present cases ought to be dealt with under section 29(1) or under section 29(3). For this purpose, the age has to be determined as provided in section 37(1) which runs as follows: “Where a person, whether charged with an offence or not, is brought before any Court........and it appears, to the Court, that he is a child or young person, the Court shall make due inquiry as to the age of that person and for the purpose shall take such evidence as may be forthcoming at the hearing of the case............” It appears from the report of the Additional Sessions Judge which is based on the records of each case concerned, that no inquiry was held as regards the age and that no evidence was recorded. From the use of the word ‘shall’ in the section, it would appear that the provision regarding enquiry is mandatory and that the Magistrate has to take the initiative and not rest content without holding inquiry, simply on the ground that no evidence was forthcoming in the sense of being voluntarily put forward before him by parties at the hearing of the case. The fact is that the Magistrate did not make any inquiry and did not record any evidence to ascertain and declare age. Section 37(1) also provides regarding age declared by the Magistrate as follows: “........but an order or judgment of the Court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the Court, and the age presumed or declared by the Court to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person........” In the present case, the age has been declared to be 14 years by the Court Magistrate) in the judgment. That age has not been proved (by any evidence). But it has been declared. Further, the above provision applies not only to age proved but also to age presumed by the Court. That age has not been proved (by any evidence). But it has been declared. Further, the above provision applies not only to age proved but also to age presumed by the Court. In each of the instant cases, when the age was not proved it has to be taken that the age was presumed by the Court. In each case, the age has been declared by the Court. Under the above provision, the age presumed or declared has to be deemed to be the true age of the person. Section 37(2) specifically provides that no Court shall in appeal or revision interefere with any presumption or declaration as to age made under section 37 (1). Section 42(3) says that any order passed under the provisions of the Act and not otherwise provided for may be revised by the High Court. Section 42(3) would not apply where section 37(2) applies. This is clear from the words in section 42(3) viz., ‘not otherwise provided for’. In each of the present cases, section 37(2) applies and this Court is barred from interfering in revision with the age of the individual as given in the Magistrate’s judgment whether that age be looked upon as given by the trial Court by way of presumption or declaration. The learned Additional Sessions Judge has reported that no finding regarding the age of juvenile offender was given at the time of the conviction. But, this report is based on an observation of certain features in his judgment. For example his report on J.C. No. 255 of 1959 is as follows: “In the judgment the age is mentioned as 14 years. But this age in the judgment appears to have been subsequently added, perhaps when the records were called for by me, as in all the judgments the age of 14 is added at the end of a paragraph where there is space and the sentence is clearly in a different pen and in some cases different ink also. In this case, it is in a different handwriting also. In this case, it is in a different handwriting also. Therefore, no finding with regard to the age of the juvenile offender in question was given at the time of conviction.” The basis on which the learned Additional Sessions Judge has come to his conclusion, that the portion stating the age must have been subsequent interpolation, is not sufficient to warrant the conclusion with certainty, though it is sufficient to raise some suspicion. So, I proceed on the basis that the statement regarding the age lawfully forms part of the judgment as pronounced by the Magistrate concerned in each case. The report of the learned Additional Sessions Judge that section 35(2)(a)of the Act does not apply to the present case is correct as that provision relates only to youthful offenders. In each of the present cases, there is no conviction of any offence but only an order under section 29(1). The individual concerned in each of these cases is aged 14 years but is not a youthful offender. In these cases, the learned Magistrate has failed to hold an inquiry or ascertain the age as required in the mandatory provisions of section 37(1) of the Act. The fixing of the age is important as it has a bearing on the question as to whether the person is a child or a young person and on the question as to how the person is to be dealt with, i.e., under section 29(1) or under section 29(3). The fact that an age as presumed or declared by the Magistrate without making proper inquiry cannot be interfered with by another Court in appeal or revision does not mean that a Magistrate may disregard the mandatory provisions of section 37(1) altogether. Such a provision in the Act makes it all the more necessary that the trial Magistrate (who has to fix the age by due inquiry) should not fail to hold a due inquiry and fix the age correctly for the purposes of the case. The attention of Junvenile Magistrates is drawn to the observation of the Madras High Court in Ramudu v. Emperor1, as follows as at page 214: “It is quite clear that section 37, Children Act, requires that a ‘due inquiry’ into age shall be made and that evidence shall be taken. The attention of Junvenile Magistrates is drawn to the observation of the Madras High Court in Ramudu v. Emperor1, as follows as at page 214: “It is quite clear that section 37, Children Act, requires that a ‘due inquiry’ into age shall be made and that evidence shall be taken. We have noticed a tendency among Judges and Magistrates to be content with the most perfunctory enquiry and to find that an accused is a young person on most inadequate evidence............It is obviously most desirable from several points of view that a declaration of age under section 37 should not be made except on adequate and proper evidence.” In that particular case, the boy was convicted of the offence of murder under section 302, Indian Penal Code and the evidence of one doctor was recorded regarding his age. In cases under section 29 also, the provisions of section 37(1) regarding the fixing of age by the Magistrate by due inquiry have to be strictly complied with. In each of the present cases, the Magistrate declared the age of the individual as 14 years. When the age is given as 14 years, it means that the individual has completed 14 years. The order under section 29(1) committing the individuals concerned, who have completed 14 years, to a Senior Certified School for a period of three years is illegal and untenable. In each case, a proper order can be passed only under section 29(3) and not under section 29(1) as the age of the individual is 14 years. The committal under section 29(3) can only be to suitable custody till the individuals concerned attain the age of 16 years or for any shorter period and not to detention in a Senior or Junior Certified School. Under section 29(3), the period cannot be three years when the age of the individual is 14years on the date of the order. The individuals concerned have been in Senior Certified School for more than one year and five months in each of the cases from the date of the order passed by the trial Court. The detention in Senior Certified School till now cannot be confirmed. I do not consider it necessary or desirable in the interests of justice to pass a fresh order under section 29(3) committing the individuals concerned to suitable custody for any period hereafter. The detention in Senior Certified School till now cannot be confirmed. I do not consider it necessary or desirable in the interests of justice to pass a fresh order under section 29(3) committing the individuals concerned to suitable custody for any period hereafter. I, therefore, set aside the orders of the trial Court in all the cases and direct the individuals concerned to be released forthwith. (Orders accordingly). A.S.R. ----- Release of offenders directed.