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2008 DIGILAW 254 (JHR)

Md. Alam v. State of Jharkhand

2008-02-29

D.K.SINHA

body2008
Order This Criminal Revision is directed against the order impugned dated 17.3.2004 passed by the IXth Additional Sessions Judge, Hazaribagh in S.T. No. 478 of 1998 whereby and whereunder the petition filed on behalf of the petitioner Md. Alam on 28.1.2004 for remitting back his case to the Juvenile Justice Court on the ground of his being Juvenile on the date of alleged occurrence under Juvenile Justice (Care and Protection of Children) Act, 2000 was rejected. 2. The petitioner stood charged for the offence under Sections 341/323/325/ 307 read with Section 34 of the Indian Penal Code alongwith the co-accused arising out of Katkamsandi P.S. Case No. 55 of 1998 and was put on trial. 3. The brief facts of the case was that the petitioner alongwith three others named in the First Information Report went to the house of the informant, Fahiman Khatoon at village Dhengure, called out her husband Allaucddin Mian and her son lItaf. When both came out, the petitioner and others started abusing them and in the same sequence, it was alleged, that the petitioner inflicted danda blow on the head of lItaf as a result of which, he fell down and became unconscious. Thereafter all the accused persons escaped. The occurrence took place on 6.5.1998 but the case was registered on 8.5.1998 after two days. 4. The main contention of the learned counsel was that the prayer of the petitioner for holding enquiry by the Juvenile Justice Court under Section 39 of the Juvenile Justice Act, 1986 was rejected by the order dated 17.3.2004 by the Additional Sessions Judge, Hazaribagh. 5. The learned counsel challenged the propriety of the order impugned passed by the learned Judge by submitting that the court concerned had no jurisdiction in the instant case to make an enquiry ascertaining the age of the petitioner as to whether he was juvenile at the relevant time of alleged occurrence. The trial court ought to have sent the case for enquiry to the Juvenile Justice Board. The date of the alleged occurrence as stated earlier was on 6.5.1998 and it was now settled under the new Act, 2000 that the date of commission of the offence has to be taken into consideration in respect of a Juvenile alleged to be found in conflict with law. 6. The date of the alleged occurrence as stated earlier was on 6.5.1998 and it was now settled under the new Act, 2000 that the date of commission of the offence has to be taken into consideration in respect of a Juvenile alleged to be found in conflict with law. 6. Advancing his argument the learned counsel submitted that according to Section 69(2) of the Juvenile Justice (Care and Protection of Children) Act, 2000, the petition filed by the petitioner before the trial court under the old Act, 1986 would be deemed to have been filed under the corresponding provision of the amended Act, 2000 and the trial of the petitioner who was Juvenile at the relevant time with the co-accused. above 18 years of age at that time would amount miscarriage of justice. 7. Finally the learned counsel, with reference to the statement of the petitioner recorded under Section 313 of Cr.P.C, submitted that the age of the petitioner was assessed by the trial court to be 17 years as on 17th March, 2004 and that the enquiry conducted for assessment of the age of the petitioner by the trial Judge was beyond his jurisdiction. In Pratap Singh vs. State of Jharkhand and Am: reported in 2005(1) JLJR 325 the Apex Court observed :- "Sub-section (2) of Section 69 of the Juvenile Justice Act postulates that anything done or any action taken under the 1986 Act shall be deemed to• have beon done or taken under the corresponding provisions of the 2000 Act. Thus, although the 1986 Act was repealed by the 2000 Act, anything done or any action taken under the 1986 Act is saved by sub-section (2), as if the action has been taken under the provisions of the 2000 Act." 8. Having regard to the facts and circumstances, I find that the trial Judge while disposing of the petition of the petitioner who claimed to be a Juvenile observed by the impugned order dated 17.3.2004:- "In the facts and circumstances mentioned above, I am of the definite opinion that petitioner was not below 16 years on the occurrence of this case dated 6.5.1998. It is pertinent to mention that if the age of petitioner was 17 years on the date of filing of this petition dated 28.1.2004, then there is no question that he was 15 years in the year 1998, rather he was about 12-13 years. It is pertinent to mention that if the age of petitioner was 17 years on the date of filing of this petition dated 28.1.2004, then there is no question that he was 15 years in the year 1998, rather he was about 12-13 years. If it was the fact then the petitioner cannot be held justified to mention his age 15 years in his bail petition dated 8.6.1998. From the discussion made above, I find and hold that the age of 'the petitioner is about 25 to 26 years at present and he was above 16 years on the date of occurrence dated 6.5.1998. Today his age is observed 25-26 years. Hence aforesaid petition is hereby rejected". 9. It is apparent from the above order that the finding and observation of the learned Additional Sessions Judge is unsustainable under the law for the reasons that Section 69(1), (2) of the Juvenile Justice (Care and Protection of Children Act, 2000 is specific which speaks:- "(1 ) The Juvenile Justice Act 1986 (53 of 1986) is hereby repealed. . (2) Notwithstanding such repeal, anything done or any action taken under the said Act shall be deemed to have been done or taken under the corresponding provisions of the Act." Meaning thereby, any thing done or any action taken under the 1986 Act is protected by sub-section (2) as if the action has been taken under the new Act. 10. Similarly, Section 18(1) of the new Act prohibits joint proceeding of Juvenile with other persons which speaks :- "No Juvenile shall be charged with or tried for any offence together with a person who is not a juvenile." 11. The learned trial court held enquiry and by the impugned order assessed the age of the petitioner to be 25-26 years as on 17.3.2004 whereas in Pratap Singh's case (supra) the reckoning date for determination of the age of Juvenile was held to be the date of alleged offence. The best recourse for the trial court was to direct an enquiry to be conducted by the Juvenile Justice Board under Section 14 of the New Act having its territorial jurisdiction. But in the instant case, the learned Additional Sessions Judge himself conducted enquiry beyond jurisdiction for determination of the age of the petitioner and recorded his finding illegally by holding the petitioner about 25-26 years on the date of impugned order. 12. But in the instant case, the learned Additional Sessions Judge himself conducted enquiry beyond jurisdiction for determination of the age of the petitioner and recorded his finding illegally by holding the petitioner about 25-26 years on the date of impugned order. 12. The objective of new Juvenile Justice (Care and Protection of Children) Act, 2000 was to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent Juveniles. For the achievement of such objective new provision for enquiry for determination of age was made and accordingly, I set aside the order impugned by directing the trial court to remit the case of the petitioner to the• Juvenile Justice Board with its territorial jurisdiction for determination of age of the petitioner by asking to report within time frame after holding enquiry, in accordance with law and to pass appropriate order on such report. 13. This Criminal Revision is allowed in the manner indicated above.