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2009 DIGILAW 684 (GAU)

Apurba Das v. State of Assam

2009-09-18

I.A.ANSARI

body2009
ORDER I.A. Ansari, J. 1. The petitioner herein is being tried as accused, in sessions case No. 65(K)/08, in the Court of the learned Additional Sessions Judge (FTC), Kamrup. 2. By filing a petition on 30-4-2008, in the learned trial Court, the petitioner contented that he was a juvenile at the time of the alleged commission of offence and, accordingly, sought for direction that he be sent to the Juvenile Justice Board constituted under Section 4 of the Juvenile Justice (Care and Protection of Children) Act, 2000, (in short, 'the said Act'). The learned trial Court, however, continued to proceed with the case by observing that the question, as to whether the accused-petitioner was or was not a juvenile, at the time of alleged occurrence, would be determined, when arguments would be heard. 3. In course of time, evidence, adduced by prosecution, was concluded, the accused-petitioner was examined under Section 313, Cr. P.C. and, thereafter, the accused-petitioner entered into his defence and adduced evidence by examining two witnesses. The case was then, fixed for arguments and; even after the case was fixed for argument, when the accused-petitioner pleaded that he was a juvenile and that he may be dealt with accordingly, the learned trial Court passed an order, on 10-9-2009, observing to the effect, inter alia, that the question of juvenility cannot be decided separately and that the evidence adduced, as a whole, both by the prosecution as well as the defence, have to be weighed in order to decide the question of juvenility and that the determination of such a question, at the end of the trial, would not cause any prejudice to the accused-petitioner. The learned trial Court, therefore, reiterated in its order, dated 10-9-2009, that the question of juvenility of the accused-petitioner would be taken up together with other questions, which may be raised at the time, when, arguments, in the case, are heard. Aggrieved by this direction, the accused-petitioner has impugned the order, dated 10-9-2009, by filing this revision petition. 4. I have heard Mr. J. M. Choudhury, learned senior counsel, appearing for the accused-petitioner, and also Mr. Z. Kamar, learned Public Prosecutor. 5. Aggrieved by this direction, the accused-petitioner has impugned the order, dated 10-9-2009, by filing this revision petition. 4. I have heard Mr. J. M. Choudhury, learned senior counsel, appearing for the accused-petitioner, and also Mr. Z. Kamar, learned Public Prosecutor. 5. While considering the present revision, it needs to be borne in mind that whenever a question arises as to whether a person, facing trial, in a case, was or was not a juvenile on the date of commission of offence, it becomes the duty of the Court to make such enquiry, in this regard, as may be deemed necessary, by taking evidence so as to determine the age of such person, and, the Court, by holding such enquiry, as indicated hereinbefore, is required to render its findings on the question as to whether the person, facing the trial, is or is not a juvenile or was or was not a juvenile on the date of commission of offence. 6. Without determining the question, as regard juvenility of a person, in a case, such as, the present one, any further progress of the trial may prove to be a futile exercise, if the accused is, eventually, found to be juvenile. It is, therefore, imperative that the question as to whether an accused, facing trial, was or was not, at the time of alleged commission of offence, a juvenile, be determined by the Court no sooner the question of the accused is raised. 7. From a careful reading of the provisions of Section 7(A) of the said Act, it becomes transparent that, for the purpose of the determination of the question as to whether an accused was or was not a juvenile on the date of the alleged commission of offence, it is not at all necessary to determine as to what offence(s) the accused has committed or whether the accused is or is not guilty of the offence(s), which, he is alleged to have committed. It shall be borne in mind that as a matter of principle as well as procedure, whenever a question of juvenility of an accused is raised, the Court must hold an enquiry and determine the answer to the question, so raised, so that the accused, if found to be a juvenile, can be dealt with, at the earliest, in accordance with law contained in that behalf. Such a determination, at the earliest is imperative, because, a juvenile cannot be tried by any Court, in any case, except in accordance with the scheme as embodied in the said Act. To put it a little differently, a Court of ordinary criminal jurisdiction cannot try a juvenile and, hence, when a juvenile, in conflict with law, cannot be tried by a Court of ordinary criminal jurisdiction, the question of juvenility of an accused, facing a trial, in a Court of ordinary criminal jurisdiction, would have to be determined, the moment such a question arises for determination in a given case. 8. In the present case too, it was, as indicated hereinabove, a duty of the learned trial Court to, first, determine the question, as to whether the accused was a juvenile or not. Instead of determining the question, so raised, the learned trial Court proceeded with the case and has not, in the light of the impugned order, dated 10-9-2009, decided and determined as yet the question of juvenility. 9. Because of what have been discussed and pointed out above, it becomes clear that the impugned order dated 10-9-2009, calls for interference by this Court inasmuch as, contrary to the scheme of the said Act and the practice of the Court, the learned trial Court has decided to proceed with the case without, first, determining the question as to whether the accused-petitioner was or was not a juvenile at the time of the alleged commission of offence(s). 10. Situated thus, the learned trial Court is hereby directed to determine, at the earliest, the question as to whether the accused-petitioner was or was not a juvenile at the time of the alleged commission of offence. Depending upon the answer, which may be reached in this regard, the learned trial Court shall proceed further with the case. 11. With the above observations and directions, this Criminal revision shall stand disposed of.