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2002 DIGILAW 666 (JHR)

ABHISHEK KUMAR SINGH v. STATE OF JHARKHAND

2002-06-18

D.N.PRASAD

body2002
Judgment : D. N. PRASAD, J. ( 1 ) THIS application has been filed under Article 226 of the Constitution of India praying therein for issuance of an appropriate writ (s), order (s) or direction (s) to respondents Nos. 1 and 2 to make enquiry in relation to respondents Nos. 3 and 4 as to whether they are juvenile or not only in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) and to direct the Juvenile Justice Board (hereinafter referred to as the Board) to hold enquiry as provided under the said Act. ( 2 ) THE petitioner/informant filed a petition before the Court of the Chief Judicial Magistrate, Palamau at Daltonganj (respondent No. 2) on 20-2-2002 stating therein that the enquiry about the accused as to whether they are juvenile or not can be made by the Board as required under the provisions of the said Act. The accused-respondent No. 4 also filed rejoinder to the said application and after hearing, the learned Additional Chief Judicial Magistrate, Palamau at Daltonganj (respondent No. 5) rejected the prayer of the petitioner by the order dated 27-2-2002. It is further stated that first information report was lodged against the accused persons including the respondent Nos. 3 and 4 for the offences under Section 302 and other Sections of the Indian Penal Code on the ground that all the accused persons had assaulted Vikas Kumar alias Ashis alias Panda. It was also alleged that the petitioner intervened during the said assault but the respondent No. 3 took out a dagger from the waist and gave a blow to Ashis alias Panda, as a result of which, he died. ( 3 ) MR. It was also alleged that the petitioner intervened during the said assault but the respondent No. 3 took out a dagger from the waist and gave a blow to Ashis alias Panda, as a result of which, he died. ( 3 ) MR. V. P. Singh, learned Counsel appearing on behalf of the petitioner submitted that the Juvenile Justice Act, 1986 has already been repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000, whereby and whereunder, it has specifically been provided under Section 4 of the said Act that if there will be a conflict in respect of juvenile, the Board shall enquire into the matter and submit a report as to whether the person is juvenile or not but the Court below committed error in rejecting the prayer of the petitioner and held that the learned Additional Chief Judicial Magistrate is empowered to enquire into the matter for determination of age by the order dated 27-2-2002. It is further argued that the Additional Chief Judicial Magistrate has got no power under the Act for holding enquiry about the determination of age when the determination of juvenile is in conflict with the law and, in the instant case, there is a conflict about the age of respondent Nos. 3 and 4 and, as such, the order impugned is fit to be quashed. ( 4 ) ON the other hand, Mr. B. M. Tripathy, learned Counsel appearing on behalf of respondent Nos. 3 and 4 contended before me that there is no illegality in the order impugned as the learned Court below rightly held that the enquiry about the determination of age would be conducted by the Court. It is also submitted that the learned Additional Chief Judicial Magistrate was empowered to hold enquiry about the determination of age by Letter/notification of the Patna High Court No. 5256-96 dated 16-4-1999 and that letter/notification has not yet been revoked or cancelled and, as such, the learned Additional Chief Judicial Magistrate is competent enough to held enquiry for determination of age and thus there is no illegality in the order impugned. It is also pointed out that no notification has been made by the State Government for constituting Juvenile Justice Board as yet as required under Section 4 of the said Act and, therefore, the Additional Chief Judicial Magistrate is competent to hold enquiry for determination of age. It is also pointed out that no notification has been made by the State Government for constituting Juvenile Justice Board as yet as required under Section 4 of the said Act and, therefore, the Additional Chief Judicial Magistrate is competent to hold enquiry for determination of age. ( 5 ) CHAPTER II of Section 4 (1) of the said Act reads as under :-"4. Juvenile Justice Board :- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government may, by notification in the Official Gazette, constitute for a district or a group of districts specified in the notification, one or more Juvenile Justice Boards for exercising the powers and discharging the duties conferred or imposed on such Boards in relation to juvenile in conflict with law under this Act. " ( 6 ) THUS it is obvious from the Section itself that notification for constituting Juvenile Justice Board is a condition precedent. In absence of such notification, there appears no existence of Juvenile Justice Board. Furthermore the Additional Chief Judicial Magistrate has been empowered to hold enquiry for determination of age as per letter/notification of the Patna High Court vide Letter No. 5256-96 dated 16-4-1999 and that letter has not yet been revoked/cancelled. ( 7 ) SECTION 24 of the General Clauses Act reads as under :-"24. Continuation of orders, etc. Furthermore the Additional Chief Judicial Magistrate has been empowered to hold enquiry for determination of age as per letter/notification of the Patna High Court vide Letter No. 5256-96 dated 16-4-1999 and that letter has not yet been revoked/cancelled. ( 7 ) SECTION 24 of the General Clauses Act reads as under :-"24. Continuation of orders, etc. , issued under enactments, repealed re-enacted.- Where any Central Act or Regulation is, after the commencement of this Act, repealed or re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law made or issued under the provisions so re-enacted and when any Central Act or Regulation which by a notification under Section 5 or 5-A of the Scheduled Districts Act, 1874 (14 of 1874) or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this Section. " ( 8 ) IT is clear that in case the Act is repealed by other Act and any notification, letter, rule or bye-laws made under the Old Act shall be deemed to continue under the re-enacted law. There appears no saving clause in the Act, 2000 and in absence of the saving clauses it will be deemed that any notification, letter, Rule which was in existence in accordance with Old or Repealed Act shall continue. ( 9 ) IN the instant case, as well, the letter issued by the Patna High Court empowering the Additional Chief Judicial Magistrate for determination of age has not yet been cancelled or revoked. I have already discussed above that there is also no notification made by the State Government constituting Juvenile Justice Board for determination of age as required under Section 4 of Act, 2000. I have already discussed above that there is also no notification made by the State Government constituting Juvenile Justice Board for determination of age as required under Section 4 of Act, 2000. Therefore, there is no alternative except the Court of the Additional Chief Judicial Magistrate who is already empowered in this respect is competent to held enquiry for determination of age. Thus, the learned Court below has rightly rejected the prayer of the petitioner which does not require for any interference at this stage. ( 10 ) HAVING regard to the above facts and circumstances I do not find any merit in this application which is, accordingly, dismissed. Petition dismissed. --- *** --- .