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2009 DIGILAW 507 (CAL)

Chumki Ghosh v. STATE OF WEST BENGAL

2009-07-15

ASHIM KUMAR ROY

body2009
Judgment :- (1) The petitioners, who have been arraigned as accused in connection with a case relating to offences punishable under Sections 498A/304B of the Indian Penal Code, moved an application before the learned Court below for forwarding them to the concerned Juvenile Justice Board and as the petitioners prayer was turned down, hence this criminal revision. (2) Heard the learned Counsels appearing on behalf of the parties. Perused the impugned order and other materials -on -record. (3) The petitioners, who were charge-sheeted under Sections 498A/ 304B of the Indian Penal Code on the date fixed for commitment, raised a claim of juvenility before the learned Court and in support of their such claim produced a xerox copies of their Admit Cards issued by the West Bengal Board of Secondary Education. Although their date of birth recorded in the Admit Card shows that the petitioners were below the age of eighteen years on the date of the alleged incident but the learned Magistrate rejected their such prayer on the ground that in the charge-sheet nothing has been mentioned that they are juvenile and High Court granted anticipatory bail to them not as a juvenile but as an adult one. (4) While the provisions of Section 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000, prescribes the procedure to be followed by a Magistrate not empowered to exercise the powers of a Board under the said Act, the provisions of Section 7A prescribes the procedure to be followed when a claim of juvenility is raised before any Court. (5) The aforesaid provisions of Section 7 and 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 are read as follows:-7. Procedure to be 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. 7A. Procedure to be followed when claim of juvenility is raised before any Court.-(1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (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. (6) In the case in hand at the stage of commitment of the case for trial to a Court of Sessions the petitioners raised a claim of juvenility in terms of provisions of Section 7A of the said Act on the strength of their date of birth recorded in the Admit Card issued by the West Bengal Board of Secondary Education. However, the learned Magistrate rejected their such plea on the ground that in the charge-sheet there was no mention that the petitioners were juvenile and they were granted anticipatory bail by the High Court not on the ground of juvenility. In my opinion, the approach of the learned Magistrate is clearly erroneous and not in accordance with the mandate of law. In my opinion, the approach of the learned Magistrate is clearly erroneous and not in accordance with the mandate of law. According to the Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 whenever a claim of juvenility is raised by an accused before any Court, the Court at first has to form an opinion whether the accused person was a juvenile on the date of the commission of the offence and then to make an enquiry and take such evidence that may be necessary to determine the age of such person. Even if in the charge-sheet there is no mention that the accuseds are juvenile and the High Court granted anticipatory bail to the said accused in a regular course but not on the ground that they were juvenile on the date of the commission of the alleged offence, still then the learned Magistrate was duty bound to form his independent opinion as to whether the accuseds are juvenile or not, on the basis of the materials produced before him and to determine the age by holding an enquiry-in the manner as provided in the sard Act. Since, this is a beneficial legislation and the object of this Act is to adopt a child-friendly approach in the adjudication and disposition of the matters relating to a juvenile in conflict with law for the best interest of such juvenile, whenever any claim of juvenility is raised before any Court, unless such claim appears per se not tenable, the Court has to proceed in terms of provisions of Section 7A of the said Act and to determine the age of such person on the date of commission of the offence. When in the instant case from the date of birth recorded in the Admit Cards of the petitioners issued by the West Bengal Board of Secondary Education, it prima facie appears that on the date of occurrence while the petitioner No.1 is little more than 16 years of age, the petitioner No.2 was less than 16 years, there is no valid reason for the learned Magistrate to decline to proceed in terms of the provisions of Section 7A of the said Act. (7) For the reasons stated above, the order impugned is set aside and this application stands allowed. (7) For the reasons stated above, the order impugned is set aside and this application stands allowed. (8) It is directed if the case is still pending before the learned Magistrate then in that case the learned Magistrate shall proceed in terms of the provisions of Section 7A of the said Act in respect of the petitioners and in the event the case is already committed to the Court of Sessions, then in that case the Sessions Court shall proceed in terms thereof. (9) It is further directed the necessary steps in terms of my order as aforesaid must be taken by the concerned Court within a month from the date of communication of this order. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.