JUDGEMENT
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(1.)Heard learned counsel for
the applicants and learned A. G. A. for the
State.
(2.)This application has been filed challenging the order dated
6-5-2005 passed by
the learned Sessions Judge, Baghpat declining to entertain an
application moved on
behalf of the applicants claiming to be a juvenile and is entitled
for protection under
the Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred as
the Act). A copy of the application has been
annexed as Annexure-5 to the affidavit, stating therein that the
two sessions trial were
amalgamated and S. T. No. 425 of 2003 is
the leading case. The applicants Pankaj and
Neeraj claimed to be minor and in the ciricumstances, a separate
trial was liable to
be conducted. It was stated in the application that they were
students at the time of
occurrence. The date of birth of the applicant Pankaj son of
Sri Charan Singh Saroha
is 27-3-1986 according to High School Certificate and the
applicant No.2 son of Sri Raj
Singh was born on 22-11 -1987 as recorded
in the School Leaving Certificate. The application was moved on
6-5-2005 that common trial should not proceed but the
application was not entertained on the ground
that since the Juvenile Justice Board has
been constituted at Meerut, it is the jurisdiction of the Board to
decide and declare
an accused as juvenile. This application has
been moved challenging the said order. It
has been argued that Section 7 of the Act
prescribes procedure to be followed by a
Magistrate not empowered under the Act.
Sub clause (1) of Section 7 provides that
when any Magistrate not empowered to exercise the powers of a
Board constituted
under the Act is of the opinion that a person brought before him
under any of the
provisions of the Act, is a juvenile of the
child, he shall without any delay record such
opinion and forward the juvenile to the competent authority having
jurisdiction over the
proceeding. Sub clause (2) of Section 7 provides that the competent
authority to which
such proceedings are forwarded under sub
section (1) shall hold the inquiry as if the
juvenile or the child had originally been
brought before it. In the circumstances, it
was the duty of the Court to have ascertained and formed an
opinion whether the
person, such as the applicants in the instant case, was a juvenile in
his opinion or
not. He could not have thrown away the
applicants and refused to entertain it only
because a Juvenile Justice Board has now
been constituted at Meerut. It is also relevant to point out that
Section 6 sub clause
(2) of the Act provides that the powers conferred on the Board by
or under this Act may
also be exercised by the High Court and the
Court of Session, when the proceeding
comes before them in appeal, revision or
otherwise. In the present case, this application was moved before
the learned Sessions
Judge, Baghpat and, therefore, he was
bound to make preliminary inquiry and
come to a conclusion, instead of relegating
the applicants to approach the Board. It is
also noteworthy that the Juvenile Justice
Board constituted under the Act do not meet
each and every day as a regular sitting of
the Court and in the circumstances, the
learned Sessions Judge, Baghpat should
have at least examined the matter and if he
was of an opinion that the applicants were
juvenile then an appropriate order should
have been passed, which the Court had
failed to do so. In the case of Bhola Bhagat
v. State of Bihar, 1997 (35), All Cri C 835 :
(AIR 1998 SC 236 : 1998 Cri LJ 390), the
Apex Court has held that whenever a plea is
raised by an accused that he was 'child' and
the Court entertains any doubt about the
age, it has to hold an inquiry itself for
determination of age or cause an inquiry to
be held and seek a report. It becomes obligatory for the Court, in
case it entertains any
doubt about the age as claimed by the accused, it was necessary
for the Court to hold
an inquiry itself. This legislation is a beneficial legislation and
socially oriented so as to
ensure every kind for reformative measures
(o be taken in respect of an accused who is
a 'child' within the meaning of the Act. In
the instant case, nothing has been done by
the learned Sessions Judge, Baghpat. It is
not a case where he completely lacked jurisdiction to even
conduct a preliminary inquiry regarding authenticity of the claim
made by the applicants that they were juvenile within the meaning
of the Act. The Court
was itself competent in view of the Section
6(2) of (he Act to have conducted an inquiry
but it appears (hat the application was not
even entertained only because Juvenile Justice Board was
constituted. This order cannot be upheld and is, therefore, quashed.
The applicants are permitted to move another application and the
learned Sessions
Judge, Baghpat shall make a preliminary
inquiry as provided under the Act and only
if he comes to a definite conclusion that the
applicants are not juvenile on the basis of
the evidence produced before him, can proceed with the joint trial.
In the event, there
is an iota of doubt regarding the age of the
applicants and the Court feels that the applicants are minor
children within the meaning of the Act, he shall proceed to make an
inquiry in accordance with law and refer the
matter to the Board or act in accordance
with Section 6(2) of the Act.
(3.)In the circumstances, this application is allowed and the
impugned order dated
6-5-2005 is set aside. The matter is sent
back for a decision on merits.
Application allowed.
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