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2009 DIGILAW 43 (CAL)

Raju Mitra v. STATE OF WEST BENGAL

2009-01-30

ARUNABHA BASU

body2009
Judgment :- (1) Heard learned Advocate for the petitioner and the learned Advocate for the State. (2) The revisional application is directed against the order dated 21.7.08 passed by the learned Addl. Sessions Judge, 1 st Court, Jalpaiguri in connection with Sessions Case No. 183/01 arising out of G. R. Case No. 348/96. (3) The petitioner herein is facing trial for commission of offence punishable under Sections 376/493, I.P.C. The learned Addl. Sessions Judge by his impugned order under challenge and afterfollowing the direction passed by the learned Single Judge of this Court in CRR 2728 of 2003 conducted necessary enquiry and came to the positive finding that the petitioner herein is a juvenile within the meaning of Juvenile Justice Act, 1986. The learned Court below as it appears from the order under challenge did not take into consideration the provision of Juvenile Justice (Care and Protection of Children) Act, 2000 which came into force with effect from 30.7.2000. In terms of provisions under Section 69 of the Act, the Juvenile Justice (Care and Protection of Children) Act, 1986 stood repealed with effect from the date when the Act 56 of 2000 came into force. It appears to me that the learned Court below was unmindful about subsequent change of law as because even after deciding that the petitioner herein is a juvenile in conflict with law, the learned Court below is of the view that this Court meaning the Court presided over by the learned Judge has the power to try the instant sessions case. (4) The learned Advocate for the petitioner submitted that while doing so, the learned Court below failed to take into account the specific provision under chapter II of the Juvenile Justice (Care and Proteetion of Children) Act, 2000 (hereinafter called Act)..The provision as to enquiry is required to be conducted in terms of provision under Section 4 of the Act. (4) The learned Advocate for the petitioner submitted that while doing so, the learned Court below failed to take into account the specific provision under chapter II of the Juvenile Justice (Care and Proteetion of Children) Act, 2000 (hereinafter called Act)..The provision as to enquiry is required to be conducted in terms of provision under Section 4 of the Act. The learned Advocate for the petitioner as well as the learned Advocate for the State specifically drew the attention to the provision of sub-section 2 of Section 7A of the Act which runs as follows : Sub-section (2) : If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect. (5) In view of the statutory provision as highlighted above, the learned Court below which does not fall within the category of Juvenile Board cannot proceed with the case in which the petitioner who is a juvenile in conflict with law is involved. There is no such thing as trial of a juvenile as is recorded by the learned Court below. (6) Under these circumstances, the order whereby the learned Court directed that he shall try the case is set aside and quashed. The learned Court below is directed to the appropriate action immediately in terms of provisions under chapter II of the Act as highlighted above and shall ensure that compliance is effected within a period of 10 days from the date of receipt/ communication of the order. With this direction, the application is disposed of. There shall be no order as to costs. (7) Criminal section is directed to forward a copy of the order to the learned Court below. It is a case involving juvenile in conflict with law. (8) Criminal Section is also directed to supply free copy of the order to the learned Advocate for the petitioner as well as the learned Advocate for the State as and when applied for.