ORDER
N.L. Tibrewal, J.
1. Two important question have been raised, for determination, in this petition. The first question relates to the procedure to be followed when there is a dispute about the age of the accused to decide whether he is a juvenile or not, and the second related question is about the competency of the court to determine the age of the accused, for that purpose.
2. In brief, the facts of the case are that Crime No. 5/93 was registered at Police Station, Sadar-Fatehpur Shekhawati under Sections 147, 148, 149, 323 and 341, IPC on the basis of Parcha-Bayan’ of the injured-Shishupal Singh, who was admitted in Government Dhanuka Hospital. The Station House Officer had reached at the hospital on getting information that one person by name Shishupal Singh was admitted there with profuse bleeding and it was a medico-legal case. In his statement, Shishupal Singh gave out that he and his brother Mangej Singh were assualted with knife by the accused-persons and Mangej Singh has died due to the injuries sustained by him. Further details of the incident were also given by him. After registration of the case, usual investigation was made by the police and a charge-sheet was submitted against four persons, including the petitioner. In the charge-sheet, the birth of the petitioner was, shown of the year, 1974, meaning thereby that he was about 18 years of age at the time of occurrence. The accused were committed to the Court of Sessions Judge, Sikar by the concerned Magistrate, vide order dated 25-6-93. After commitment, the case was made over for trial to the Court of Additional Session Judge, by the learned Sessions Judge. Before the trial was commenced, an application was moved by the petitioner, stating therein that his date of birth was June 20, 1978 and, as such, he was 14 years eight months and 11 days old on the day of occurrence, i.e., 19-2-1993. He, therefore, prayed that his case be transferred to the Juvenile Court. Along with the application, he submitted a Transfer Certificate issued by the Head-Master, Government Secondary School, Fatehpur, wherein his date of birth was June 20, 1978. He also filed his own affidavit in support of his age. Admittedly, no inquiry was made by the Additional Sessions Judge-to determine his age. He declined prayer of the petitioner on the ground that in the medical certificate, his age was reported between 18-20 years on 1-3-1993. The said order of the Additional Sessions Judge is impugned in this petition under Section 482, Criminal Procedure Code, 1973 (hereinafter referred to as ‘the Code’).
3. Every child is nation’s wealth. Article 39(f) of the Constitution provided “that children are given opportunities and facilities to develop in a healthy manner and in’ conditions of freedom and dignity and that childhood and youth are protected against exploitation land against moral and material abandonment”. In good olden days,] every home was the best child cure home’, where a child used to get proper protection, education and care and look after. The atmosphere at homes, schools and in the society was conducive for over-all development of children and their character build up. Gradually, with the growth of population and industrialisation, the children are ignored every-where. On account of immature mind, lack of proper care, training and discipline, they easily become victim at the hands of evil elements of the society of today. Many of them, who are charged as criminals, are themselves victims of the circumstances prevailing in society. However, no society can now afford to ignore the neglected and delinquent junenile as it may have a far-reaching effect on the society as a whole. Social mal-adjustment and economice constrains, which caused neglect of any delinquency in children – needed a justice system – exclusive for them, as justice-system available for adults was found unsuitable for juvenile.
4. The Juvenile Justice Act, 1986 (hereinafter referred to as ‘Act’) has been enacted by the Parliament ‘to provide for the care, protection treatment, development, rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to, and disposition of, delinquent juveniles’. The Act is a beneficial and socially oriented legislation and reflects the anxiety and the reformative will of the nation towards the neglected and delinquent children. The lofty ideas and the purpose and circumstances leading to the enactment have been extensively stated in the statement of Objects and Reasons as under:-
A review of the working of the existing Children Acts would indicate that much greater attention is required to be given to children who may be found in situations of social maladjustment, delinquency or neglect. The justice system as available for adults is not considered suitable for being applied to juveniles. It is also necessary that a uniform juvenile justice system should be available throughout the country which should make adequate provision for dealing with all aspects in the changing social, cultural and economic situation in the country. There is also need for larger involvement of informal systems and community bases welfare agencies in the care, protection, treatment, development and rehabilitation of such juveniles.
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Thus, the entire approach behind the legislation is curative and reformative and not punitive, so that the neglected and delinquent juveniles are reformed to lead a normal life in the society Care had been taken that they do not come into the contact with hardened criminals and their chances of reformation are not blighted. It was rightly pointed out by the Supreme Court in the case of Sheela Barse v. Union of India, :
If a child is a national asset, it is the duty of the State to look after the child with a view to ensuring full development of its personality. That is why all the statutes dealing with children provide that a child shall not be kept in jail. Even apart from this statutory prescription, it is elementary that a jail is hardly a place where a child should be kept. There can be no doubt that incarceration in jail would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society.
Really speaking, the trial of children must take place in the Juvenile Courts and not in the regular Criminal Courts. There are special provisions enacted in various statutes relating to children providing for trial by Juvenile Courts in accordance with a special procedure intended to safeguard the interest and welfare of children.
5. Before I take up the controversy raised before me, it would be fruitful to refer some of the relevant provisions of the Act. Section 2(d), (e), (h), (i) and (n) defines the expression ‘competent authority’, ‘delinquent juvenile’, ‘Juvenile Court’ and ‘offence’ respectively as under:-
(d) “competent authority” means, in relation to neglected juveniles, A Board and, in relation to delinquent juveniles, a Juvenile Court and where no such Board or Juvenile Court has been constituted, includes any Court empowered under Sub-section (2) or Section 7 to exercise the powers conferred on a Board or Juvenile Court;
(e) “delinquent juvenile” means a juvenile who has been found to have committed an offence;
(h) “juvenile” means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years;
(i) “Juvenile Court” means a Court constituted under Section 5;
(n) “offence” means an offence punishable under any law for the time being in force.
Section 7 of the Act lays down the power of Board and Juvenile Court and it provides that where a Board or Juvenile Court has been constituted for any area, such Board or Court, shall, notwithstanding anything contained in any other law for the time being in force, but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to neglected juveniles or delinquent juveniles, as the case may be. Sub-section (2)’, then, provides that in the absence of establishment of a Board or Juvenile Court, the power shall be exercised in the area by the District Magistrate; or the Sub-Divisional Magistrate; or any Metropolitan Magistrate or Judicial Magistrate of the first class, as the case may be. Sub-section (3) empowers the High Court and the Court of Session to exercise the powers conferred on the Board or the Juvenile Court by or under the Act. It reads as under:-
(3) – The powers conferred on the Board or Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding conies before them in appeal, revision or otherwise.
Section 8 lays down the procedure to be followed by a Magistrate not empowered under the Act and it reads as under:-
8. 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 or a Juvenile Court under this Act is of opinion that a person brought before him under any of the provisions of the Act (otherwise than for the purpose of giving evidence) is a juvenile, he shall record such opinion and forward the juvenile 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 had originally been brought before it.
A combined reading of Sections 7 and 8 of the Act makes it clear that the Court of Session and the High Court are empowered to exercise the powers conferred on the Board or Juvenile Court by or under the Act when the proceedings come before them in appeal, revision or otherwise; but a Magistrate, not empowered, cannot exercise the powers conferred on the Board or the Juvenile Court and he is required to forward the juvenile and the record of the proceeding to the competent authority, having jurisdiction over the proceeding.
6. The constitution of a Juvenile Court is made by the State Government in the manner provided under Section 5 of the Act. Similary, ‘Juvenile Homes’, ‘Special Homes’ and ‘Observation Homes’ may be established by the State Government under Sections 9, 10 and 11 of the Act.
Section 18 of the Act lays down that where a juvenile is arrested, he or she has to be ordinarily released on bail, irrespective of the nature of the offence alleged to have been committed, unless it is shown that the release was likely to bring him into association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice. Sub-section (2) of Section 18 further prohibits a police officer to keep a delinquent juvenile in a police station or jail if he is not released on bail under Sub-section (1) by the Officer-in-Charge of the police station} If a bail is refused by a Juvenile Court, Sub-section (3) provides that instead of committing him to prison, the Court shall make an order sending him to an ‘observation home’ or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order. The provisions of Section 18 have, thus, a salient object to keep away a juvenile from the company of criminals. Section 20 provides for an inquiry by Juvenile Court regarding delinquent juveniles, who are charged with an offence. Section 21 prescribes the Orders that may be passed by Juvenile Court in relation to a delinquent juvenile. Then, Section 22 prohibits from passing certain Orders against them. Sub-section (1) reads as under:-
(1) – Notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent juvenile shall be sentenced to death or imprisonment, or committed to prison in default of payment of fine or in default of furnishing security;
Provided that where a juvenile who has attained the age of fourteen years has committed an offence and the Juvenile Court is satisfied that the offence committed is of so serious nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Juvenile Court, may order the delinquent juvenile to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the State Government.
Then, Section 39 provides the procedure in inquiries etc. It may be stated in extenso:
39-Procedure in inquiries, appeals and revision proceedings:-(1) Save as otherwise expressly provided by this Act, a competent authority while holding any inquiry under any of the provisions of this Act, shall follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1973.
(2) Save as otherwise expressly provided by or under this Act, the procedure to be followed in hearing appeals or revision proceedings under this Act shall be, as far as practicable, in accordance with the provisions of the Code of Criminal procedure, 1973.
7. A reference to some of the provisions of the Act makes it apparent that extra-ordinary procedure has been prescribed for an inquiry and punishment for an offence committed by a Juvenile. A trial of a delinquent juvenile under, the Code is prohibited. Even a joint trial with a person, who is not a juvenile, is expressly prohibited. A delinquent juvenile has to be dealt with under the provisions of the Act, which are curative and reformative, than punitive. Section 22 expressly provides that no delinquent juvenile shall be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security. A delinquent child, who is found guilty on any inquiry, even cannot be sent to jail. He cannot be kept in jail or police station before being produced before a Juvenile Court. The benefits of the provisions: of the Act are available to a juvenile only, i.e., a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years on the day of occurrence. They have been given a special status as a class. Therefore, the age of the accused on the day of occurrence assumes importance. Section 39 of the Act, extracted earlier, provides the procedure of an inquiry to be made under any of the provisions of the Act. It provides that the procedure laid down under the Code for trial in summons cases shall be followed as far as may be. The procedure for trial of summons cases is provided in Chapter XX in the Code. Section 254 of the Code makes it obligatory on the Magistrate to record evidence of the prosecution and defence, if an accused is not convicted under Section 252 or 253. Section 32 of the Act also makes it obligatory to make an inquiry of the age of an accused and for that purpose to take such evidence as may be necessary. The Court is required to record a finding on the basis of evidence and material before it as to whether the accused was a juvenile or not. Sections 32 and 39 of the Act, if read together, undoubtedly make it clear that the determination of age of an accused should be after holding an inquiry like a summons case, and the parties are given an opportunity to lead oral evidence and also a right of cross-examination to the witnesses of the opposite party. In short, the age is determined on the basis of evidence to be adduced and other material in support there-of being produced. No hard and fast rule can be laid down as to whether medical evidence should be given preference over a school certificate or vice-versa for deciding the age. It would depend upon the nature and quality of the evidence. But, one thing is clear that an inquiry has to be held for determination of age which includes recording of oral evidence with a right to cross-examination to the other party. No other view is possible than the view which I have taken. The age of an accused on the day of occurrence is an important factor, which decides his fate as to whether he was entitled to get the benefit of the provisions of the Act, which save him from an ordeal of a criminal trial under the Code and also the punishment of imprisonment etc.
8. It is often seen that a plea is not taken by an accused at the initial stage of his being a juvenile. Such objection is raised sometimes in appeal or revision. Therefore, I am of the opinion that whenever an accused is brought before the court who appears to be juvenile or of an age of 21 years or below, an inquiry should be undertaken about his age before proceeding with the trial in the case. In many cases, it is found that Magistrates or even Courts of Session are unmindful that determination of age of an accused is very much crucial when he appears to be a juvenile. Whether a plea is taken or not at the initial stage, the Courts should not forget their duty which has been cast upon them to deal with delinquent juveniles differently from persons who are not juvenile. In Gopinath Ghosh V. The State of West Bengal, 1984 Cr LR (SC) 1 : (1984 Cri LJ 168), the Supreme Court; rightly observed at Page 172; of Cri LJ:
We are of the opinion that whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below, before proceeding with the trial or undertaking an inquiry, an inquiry must be made about the age of the accused on the date of the occurrence. This ought to be more so where special acts dealing with juvenile delinquent are in force. If necessary, the Magistrate may refer the accused to the Medical Board or the Civil Surgeon, as the case may be for obtaining creditworthy evidence about age. The Magistrate may as well call upon accused also to lead evidence about his age. Thereafter, the learned Magistrate may proceed in accordance with law. This procedure, if properly followed, would avoid a journey up to the Apex Court and the return journey to the grass-root court. If necessary and found expedient, the High Court may on its administrative side issue necessary instructions to cope with the situation herein indicated.
9. The next important related question is about the competency of a Magistrate or a Court of Session to hold an inquiry about the age of the accused under Section 32 of the Act. So far as Magistrate is concerned, Section 8 is explicit and provides that a Magistrate, who is not empowered, cannot exercise the power of the Board or a Juvenile Court under the Act, as such, he cannot hold an inquiry. Section 32 empowers the competent authority, i.e., a Juvenile Court to hold an inquiry of the age of accused who appears to be a juvenile. However, Sub-section (3) of Section 7 empowers the High Court and a Court of Session to exercise all powers conferred on the Board or a Juvenile Court by or under the Act when the proceeding comes before them in appeal, revision or otherwise, Section 9 of the Code provides that an Additional Sessions Judge can exercise jurisdiction of a Court of Session if he is so appointed by the High Court. Therefore, the power of Sub-section (3) of Section 7 of the Act can be exercised by an Additional Sessions Judge also when he exercises juris diction of a Court of Session. The Additional Sessions Judge, Sikar, by virtue of Sub-section (3) of Section 7 of the Act, was, therefore, competent to determine the age of the accused, op commitment of the case to his Court, to find put whether he was a juvenile or not.
10. After the above discussions, the legal position on the issues raised in this petition may be summarised as under :-
(i) For the determination of age, to decide whether an accused is a juvenile or not, an inquiry is a must to be made by the competent authority by giving an opportunity to the parties to adduce oral and documentary evidence and also a right to cross-examine to the opposite party;
(ii) The inquiry can be made by a Magistrate if he is empowered to exercise the power of the Board or Juvenile Court, otherwise he will have to forward the accused and the record of the proceeding to the Juvenile Court having jurisdiction over the proceeding;
(iii) The High Court or the Court of Session can exercise the power of the Board or a Juvenile Court, which also includes an inquiry for determination of age of the accused, when the proceeding comes before them in appeal, revision or otherwise, so after commitment of the case the concerned Court of Session can determine the age of the accused to decide whether he was a juvenile or not?
11. In the instant case, the learned Additional Sessions Judge did not make any inquiry in the manner, is stated above, hence the impugned order is not sustainable. It is, therefore, set aside. The case is sent back to the concerned Court to hold an inquiry about the age of the accused in the manner stated above and, thereafter, to proceed in accordance with law. The petition is allowed, as indicated above.