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2001 DIGILAW 1881 (RAJ)

Moola Ram v. State of Rajasthan

2001-12-05

K.S.RATHORE

body2001
JUDGMENT 1. - This criminal misc. petition under section 482 of the Code of Procedure in the matter of FIR No. 53 of 2001 of Police Station Khetri, District Jhunjhunu for the offence under Sections 376, 447 and 354 IPC has been preferred against the order dated 29.9.2001 passed by the Additional Sessions Judge, Khetri, District Jhunjhunu. 2. Regarding maintainability of the misc. petition, learned counsel for the complainant Shri M.K. Kaushik has raised preliminary objection. 3. Heard learned counsel for the petitioner, learned Public Prosecutor and learned counsel for the complainant. 4. Mr. Kaushik has referred the provisions of Juvenile Justice Act, 2000. Section 7 and 12 of which are reproduced hereunder: 7. Procedure to the followed by a Magistrate not empowered under the Act : (1) When any Magistrate not empowered to exercise the powers of a Board under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence), is a juvenile or the child, he shall without any delay record such . opinion and forward the juvenile or the child 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 or the child had originally been brought before it. 12. Bail of Juvenile : (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 Board, 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, physical or psychological 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 only in an observation home in-the prescribed manner until he can be brought before a Board. (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 only in an observation home in-the prescribed manner until he can be brought before a Board. (3) When such person is not released on bail under Sub-section (1) by the Board 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. 5. Learned counsel Shri Kaushik in support of his contentions placed reliance on the judgment of this Court passed in S.B. Criminal Misc. Bail Application No. 2914/2001 "Sachin v. State " and two more matters which are decided by the common judgment vide order dated 21st September, 2001 wherein this Court has held as under : "that Sachin was minor at the time of committing of alleged crime, his date of birth being 6.7.1984 i.e. on the date when the crime is said to have been committed he was of 16 years plus, therefore, the counsel submits that under the Juvenile Justice (Care and Protection of Children) Act, 2000, such an accused should not be arrested and if arrested, he is entitled to protection under the Act. Section 12 of the act prescribes that 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 Board, 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 physical or psychological danger or that his release would defeat the ends of justice. It is further provided in sub-section (2) of section 12 that v/hen such a 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 only in.an observation home in the prescribed manner until he can be brought before a Board. Under Sub-section (3) of Section 12 when such person is not released on bail under Sub-section (1) by the Board 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. The procedure has been prescribed by the Board." 6. This Court after considering the judgment of Kailash v. State of Raj. 1999(3) Crimes 534 ; State of M.R v. Gyan Singh 1992 Cr.L.J. 192 and Shahzad Hasan Khan v. Ishitaq Hasan Khan and Another AIR 1987 SC 1613 observed as under: "It is settled law that the concession of anticipatory bail can be denied to the accused persons how are accused of heinous crime. The contention of the accused Sachin cannot be accepted to the fact that because of the reason that he is juvenile, therefore, he cannot be arrested at all. Juvenile Act safeguards the interest of Juvenile when they are arrested and produced before the competent authority for bail or otherwise. If and when the accused are arrested or the police is able to arrest them, they are bound to be produced and dealt with as per law". Ultimately, this High Court declined granting concession of anticipatory bail under Section 438 Cr.RC. 7. Learned counsel for the complainant further placed reliance on the judgment Ram Deo Chauhan alias Raj Nath Chauhan v. State of Assam AIR 2001 Supreme Court 2231 wherein the Apex Court has held as under: "Chapter III of the Court deals with the powers of the Criminal Courts. Section 26 specifies the Courts by which various offences are triable. Section 27 deals with the jurisdiction of the Criminal Courts in case of juvenile. Section 26 specifies the Courts by which various offences are triable. Section 27 deals with the jurisdiction of the Criminal Courts in case of juvenile. It provides that when any offence not punishable with death or imprisonment for life, committed by any person, who, at the date when he appears or is brought before the Court is under the age of sixteen years, such accused can be tried by the Court of Chief Judicial Magistrate or by any Court specially empowered under the Children Act or any other law for the time being in force providing for the treatment,' training or rehabilitation of the youthful offenders. The Act was enacted in the year 1986, without incorporating any amendment in Section 27 of the Code. A harmonious reading of the Act, particularly Section 8 and Section 27 of the Code would lead us to hold that wherever any delinquent juvenile, accused of an offence, irrespective of the punishment imposable by law, is produced before a Magistrate or a Court, such Magistrate or the Court, after it is brought to its notice or is observed by the Magistrate or the Court itself that the accused produced before it was under the age of 16 years, shall refer the accused to the Juvenile Courts if the Act is applicable in the State and the Courts have been constituted or otherwise refer the case to the Court of Chief Judicial Magistrate who will deal with the matter in accordance with the provisions of law. As noticed earlier, neither the investigating agency, nor the Magistrate or the Court or the accused felt the necessity of application of the provisions either of Section 27 of the Code or the provisions of the Act, particularly Section 8 thereof". 8. Mr. Kaushik further submits that Misc. petition is not maintainable and the petitioner can move before the competent authority under the provisions of the Juvenile Justice Act, 2000. Although Mr. Kaushik also challenged Juvenile Justice (Care and Protection of Children Act, 2000 Act No. 56 of 2000) which came into force on 1.4.2001 whereas in the present case the incident took place prior to 1.4.2001. Therefore, provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 is not applicable to the present case. 9. Although Mr. Kaushik also challenged Juvenile Justice (Care and Protection of Children Act, 2000 Act No. 56 of 2000) which came into force on 1.4.2001 whereas in the present case the incident took place prior to 1.4.2001. Therefore, provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 is not applicable to the present case. 9. Learned counsel Shri C.K. Garg referred Section 6 of the said Act emphasise on the words - "Powers of Juvenile Justice Board : (1) Where a Board has been constituted for any district or a group of districts, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law. (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise. 10. Mr. Garg submits that the case of the petitioner covers under the provisions of sub section 2 of Section 6. If proceedings do not come before the court of session and by way of appeal and revision but it was otherwise was brought into the notice to the trial Court and trial court ought to have considered power conferred under the provision of Section 6 of the Juvenile Justice Act, 2000. 11. In reply to the argument that this present Act is not applicable to the instant case. Mr. Garg submits that the earlier Act was also having similar analogous provision to Section 7(3) wherein it was specifically mentioned "The powers conferred on the Board of Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal revision or otherwise". Therefore, the application under Section 438 Cr.P.C. moved with the reasons that the petitioner is a juvenile and this fact was brought to the notice in view of Section 6(2) 7(3) of the earlier Juvenile Act, 1996. 12. In support of the argument Mr. Therefore, the application under Section 438 Cr.P.C. moved with the reasons that the petitioner is a juvenile and this fact was brought to the notice in view of Section 6(2) 7(3) of the earlier Juvenile Act, 1996. 12. In support of the argument Mr. C.K. Garg placed reliance on the judgment reported in RLW 1995 (2) (Raj.) 624 "Sita Ram v. State of Rajasthan and Others " wherein this High Court has held that "Juvenile offender-should be charged and tried separately-Sessions Judge is duty bound to conduct on inquiry under section 32 of the Act of 1986 and after recording the evidence to give a specific finding as to whether the accused is a juvenile i.e. below the age of 16 years on the date the alleged incident or not-Not conducting inquiry is abuse of the process of the Court." 13. Heard rival contentions of the parties and perused the judgments cited before me and also perused the provisions of Juvenile Justice Act, 1986. 14. I have also gone through the judgment referred by Mr. Garg of Sita Ram (supra) wherein it was observed "In the instant case the petitioner Sita Ram has been charged and tried together along with co-accused Om Prakash, Hari Prasad and Tara Chand who are not juveniles. Thereafter the learned Sessions Judge was duty bound to conduct an inquiry under Section 32 of the Act and after recording the evidence to give a specific finding as to whether the petitioner was a juvenile i.e. a boy below the age of 16 years on the date of the alleged incident or not and if he was found to be juvenile then he ought to have ordered for a separate trial of the petitioner in accordance with law. But he failed to comply with the provisions of Section 32 of the Act. Therefore, the impugned orders suffer from a serious infirmity, which is tantamount to abuse of the process of the court and as such the impugned orders cannot be sustained. 15. Mr. Garg further submits that at the time of moving application under Section 438 Cr.RC. But he failed to comply with the provisions of Section 32 of the Act. Therefore, the impugned orders suffer from a serious infirmity, which is tantamount to abuse of the process of the court and as such the impugned orders cannot be sustained. 15. Mr. Garg further submits that at the time of moving application under Section 438 Cr.RC. he specifically stated in his application that the petitioner being a juvenile and aged 15 and 1/2 years old and in support of his age he submits his transfer certificate of the school which shows that his date of birth is 11.4.84, therefore this fact was brought notice to the Additional District and Sessions Judge, Khetri, District Jhunjhunu and immediately after coming to this fact the Additional Sessions Judge ought to have proceeded in accordance with provisions of Section 6(2) as Section 6(2) of the Juvenile Justice Act, 2000 provides that the proceedings comes before them in appeal revision or otherwise. Mr. Gargs contention is that he brought this fact otherwise by mentioning in the application under section 438 Cr.RC. Without deciding enquiry in view of the earlier provision of Section 32 of 1986 or in view of the Act 14 of 2000, the Additional District & Sessions Judge ought to have enquired into the matter and place the matter before the Board to hold the enquiry in accordance with the provisions of the Act. In reply to the argument advanced by the learned counsel Mr. Garg, Mr. Kaushik submits that this enquiry could only be decided on account of appearance of the accused before the Board and he placed reliance on the judgment of this Court while rejecting the bail application under Section 438 Cr.P.C. (S.B. Cr. Misc. Bail Application No. 2914 wherein the court observed that if the accused are arrested or police is able to arrest them they are bound to produce and dealt with as per law. 16. Misc. Bail Application No. 2914 wherein the court observed that if the accused are arrested or police is able to arrest them they are bound to produce and dealt with as per law. 16. The Apex Court in the case of Ram Deo Choudhary (supra) has held that any offence not punishable with death or imprisonment with life committed by any person, who at the date when he appears or is brought before the Court is under the age of sixteen years, such accused can be tried by the Court of Chief Judicial Magistrate or by any Court specially empowered under Children Act or any other law for the time being in force providing for the treatment, training or rehabilitation of the youthful offenders. 17. Therefore, it is a settled law that if any person is below the age of 16 years he should be tried separately under the provisions of Juvenile Justice Act, 1986 and Juvenile Justice Act 2000. But in both the Acts it is necessary to hold enquiry to establish this fact whether the person is juvenile or not under Section 32 of the Old Act and under Section 40 of the New Act. It is for the Board to enquiry into the matter and make such order in relation to the juvenile as it deem fit. 18. Admittedly, in the present case no enquiry whatsoever is made by Board either under Section 32 or under Section 40. Without going into the controversy whether this misc. petition is maintainable or not and considering the argument of Mr. Garg if it is considered that "otherwise" as provided under Section 6 sub clause 2 he may brought this fact to the notice to the Additional Sessions Judge who is duty bound to place the matter before the Board for such enquiry. I have carefully gone through the order dated 29.9.2000 under section 438 Cr.RC. moved by the petitioner. The learned Additional Sessions Judge has observed that unless the accused applicant is not arrested he cannot be produced before the competent Board and the fact whether he is juvenile or not cannot be established without an enquiry and with this observation the application under section 438 Cr.RC. has been rejected. 19. Mr. Garg submits that the enquiry can be made without production of the accused petitioner before the Board. 20. has been rejected. 19. Mr. Garg submits that the enquiry can be made without production of the accused petitioner before the Board. 20. I have also perused the provisions in the light of the judgments referred before me. By bare perusal of the provisions reveals that enquiry is necessary to establish whether the accused petitioner is juvenile or not in view of the provisions of the Act. I have no hesitation to direct the Additional Sessions Judge Khetri to place the matter before the Board to enquire in the matter whether the petitioner is juvenile or not strictly in accordance with the Act and the petitioner is free to represent before the Additional Sessions Judge any material and law supported with the judgment which are referred here. 21. With these observations, this misc. petition stands disposed of. *******