ORDER
S.S. Rathor, J.
1. Vide this order two petitions Crl. Revision No. 361 of 1991 and Crl. Misc. No. 6043-M of 1991, which are correlated, would be disposed of together. Petitioner Daljit Singh alone has filed these two petitions. Hereinafter the Juvenile Justice Act, 1986 would be referred to as the Act ‘and Code of Criminal Procedure, 1973 as’ Code.
2. The factual position is that an occurrence is alleged to have taken place on 19-10-1990 resulting in lodging of an F.I.R. No. 141 dated 20-10-1990 for offences under Sections 302/ 324/34, IPC with P.S. Mohali, Tehsil Kharar, District Ropar. The petitioner along with two other co-accused was involved in the alleged heinous crime of murder of Raj Kumar alias Raju. As the ordinary law takes its course, the petitioner along with his co-accused was arrested in the case. Presumbly the accused persons after their arrest were produced before the Ilaqua Magistrate concerned. After completion of the investigation and filing of the challan papers etc. before the Magistrate, the petitioner and his co-accused were committed to the Court of Session at Ropar to face a regular trial under the ‘Code’. The learned Sessions Judge took cognizance of the matter, framed charges against’ the accused under Sections 302/324/34, IPC Vide order dated 22-4-1991 and also fixed the case for recording of prosecution evidence on 25-5-1991. During the pendency of the proceedings before the learned Sessions Judge, Daljit Singh, petitioner moved an application under Section 439, Cr. P.C. for the grant of bail during the pendency of the trial. In the bail application, it was inter alia stated by the petitioner that he was below 16 years of age at the time of alleged commission of offence and sought release of bail on that ground. In support of this assertion, he filed a photo copy of his matriculation certificate dated 31-12-1990, wherein his date of birth is entered as 27-2-1975. According to this certificate purported to have been issued by Punjab School Education Board of the matriculation examination, his age comes to 15 years and 8 months on the date of the alleged occurrence. In addition to this bail application, he had also moved an application dated 19-4-1991 (Annexure P-2 with Crl. R. No. 361 of 1991), wherein it was specifically alleged that the petitioner was a Juvenile being less than 16 years of age at the time of occurrence and was entitled to be tried by a Juvenile Court only.
3. On the aforesaid application dated 19-4-1991, the learned Sessions Judge passed the order dated 22-4-1991 against which present Crl. Revision No. 361 of 1991 has been filed in this Court. The contention of the petitioner that he was to be dealt with under the provisions of the Act, being less than 16 years of age at the time of occurrence was primarily declined on the ground that the provisions of the “Act” in question are not applicable in view of the provisions of Section 27 of the “Code”. Accordingly, the application dated 19-4-1991 was rejected and it was ordered that the petitioner who had already been charged be proceeded against for the offences under the procedure as laid down in the “Code”. Similarly against the order dated 26-4-1991, declining bail to the petitioner, the petitioner had filed Crl. Micsc. No. 6043-M of 1991 for the grant of bail only. Hence both these petitions are today before me.
4. The relevant provisions of the Juvenile Justice Act, 1986 which need mention are as follows:–
Definitions : Section 2, 2(e). “delinquent juvenile” means a juvenile who has been found to have committed an offence.
2(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.
2(i). “juvenile Court” means a Court Constituted under Section 5.
2(n). “offence” means an offence punishable under any law for the time being in force.
Section 3 makes it clear that even if during the course of inquiry under the Act, person, ceases to be a juvenile, the inquiry may continue and orders may be made in respect of such person as if such person continues to be a juvenile.
Section 5 provides that in spite of anything contained in the Code (Act No. 2 of 1974), State Government has been cast with a duty to establish a Juvenile Court with jurisdiction over specific area in relation to powers and duties to deal with delinquent juveniles under the Act.
Section 7 makes it abundantly clear that notwithstanding anything contained in any other law, the Juvenile Court shall have exclusive power to deal with all the delinquent juveniles exclusively.
Section 8(1) reads as under:–
8(1). When any Magistrate not empowered to excercise the powers of a Board or a Jevenile Court under this Act is of opinion that a person brought before him under any of the provisions of this 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.
Section 18 lays down that whenever a person accused of non-bailable offence and who is apparently a juvenile is arrested and brought before the Court, such person not-Withstanding the provisions of the Code or any other law for the time being in force shall be released on bail. It is also provided therein that if the case is not fit for grant of bail, such persons shall be dealt with in different ways as given under the Section but certainly shall not be sent to jail meant for ordinary criminals.
The combined reading of Sections 20, 21 and 39 shows that if a person is held to be juvenile under Section 20, the Juvenile Court is to hold an inquiry following the procedure as laid down in Section 39 and ultimately an appropriate order is to be pased as provided under Section 21.
Section 32 deals with the procedure of determination of age of a juvenile after due inquiry by the competent authorities.
Section 37 provides remedy of appeal to an aggrieved person against the order of competent authorities, to be preferred within 30 days before the Court of Sessions Judge concerned.
Under Section 38, High Court has been conferred with revisional power either suo motu or otherwise to call for the record of any proceedings in which any competent authority or Court of Session has passed an order and for satisfying itself regarding legality or propriety of the order. High Court has further been empowered to pass any order as it thinks fit, of course after giving an opportunity to the person aggrieved.
5. If the aforesaid provisions are kept in mind and are applied to the facts of the case, it is apparent that the petitioner as per the matriculation certificate was much less than 16 years of age at the time of occurrence and his arrest, when produced before Ilaqua Magistrate by the Police. The Magistrate was not made conscious of the material evidence of the age of the petitioner. However, for the first time petitioner raised the plea of being a juvenile before the Court of Session, which to my mind was erroneously rejected primarily on the ground that the provisions of Section 27 of the Code shall have precedence over the provisions of the Act. But it is otherwise, Undoubtedly the provisions of the Act would have precedence being special law. The ratio of a Supreme Court judgment reported as 1979 Cri App R (SC) 300 : 1979 Cri LJ 1365, Rohtas v. State of Haryana can conveniently be relied upon in support of this view. The provisions of the Haryana Children Act, 1971 to Which this judgment relates to and the provisions of the ‘Act’ in question are identical in nature and almost serve the same object of law. In another judgment, the Appex Court while dealing with the West Bengal Children Act, 1959, authoritatively held in the judgment reported in 1984 Cri App R (SC) 91 : 1984 Cri LJ 168, Gopi Nath Ghosh v. State of West Bengal, that a person who is a child under the said Act being less than 18 years of age at the time of commission of offence would be termed as a delinquent juvenile and the proceedings for a criminal offence against such a juvenile have to take place in the Juvenile Court established by the State Government. If Juvenile Courts are not established then power under the said Act as Juvenile Court shall be exercised by the Court of Session. It was further emphasised that only an inquiry and not a trial of a juvenile delinquent is to take place under the provisions of the Code. In this case the Supreme Court was dealing with the conviction for life imprisonment on a murder charge against the appellant who was prima facie found to be 16/17 years of age at the time of commission of offence. Setting aside the conviction, it was held that the appellant could not be sent to jail to undergo life imprisonment rather he had to be dealt with by a Juvenile Court for passing an appropriate order.
6. We have to keep in mind that before the coming of the Juvenile Justice Act, 1986, there were different State Enactments operative in different States. Haryana Children Act was applicable to the State of Haryana. Madras Children Act was enforced having been adopted in the State of Punjab. West Bengal Children Act was prevailing in West Bengal. Similarly Bihar Children Act was there in the State of Bihar. All these enactments were made to deal with a child offender as termed under the respective Acts and now such child offender has been termed as a delinquent juvenile under this Act No. 53 of 1986. Sections 3 and 56 of this new Act were interpreted and were termed as deeming provisions in relation to Sections 3 and 52 of the Bihar Children Act, 1986, by a Full Bench judgment of Patna High Court reported as AIR 1989 Pat 217 : 1991 Cri LJ 1283, Krishana Bhagwan v. State of Bihar. In nutshell, the view taken is that all proceedings pending under the Bihar Act would be deemed to continue under this new Act. All actions taken under the old Act of convicting or sentencing the delinquent shall not stand good in the eye of law in view of this new enactment. The Full Bench further observed that the Children Act as well as the Juvenile Act treat the delinquent children/juvenile as a special class and provide special procedure for inquiry in respect of charges levelled against them. Even if those charges are proved, a very liberal approach has been provided in respect of punishment for such offences. Different sections put a strict bar on the child/juvenile being sent to jail either before an inquiry or after the conclusion of the inquiry in respect of the alleged offences even if it may be a case of murder or of rape. He cannot be sentenced to death or for life imprisonment. On finding him guilty, he is to be kept in safe custody or a place as ordered under the Act.
7. Besides reference to the aforesaid judgment, brief analytical reference to certain provisions of Act No. 53 of 1986 is necessary on this point. Definitions given in Section 2 (e), (h) and (n) makes it clear that when a juvenile has committed an offence (may be murder), he is called a delinquent juvenile. Delinquent juvenile might have committed any heinous crime, the matter can be inquired into and he can only be proceeded against under this Act. The Act protects a juvenile from the ordinary law to the extent that under Section 3 of the Act, when inquiry is taking place and he ceases to be a juvenile, he shall still be continued to be treated as a juvenile. Under Sections, a Juvenile Court is to be established by the State to exclusively act and proceed under the Act, completely disregarding the provisions of the Code. And after establishment of a Juvenile Court, further under Section 7 it is said that notwithstanding anything provided in any other law, Juvenile Court shall have exclusive power to conduct proceedings against Juvenile. Sub-clause (3) of Section 7 has conferred power on the High Court and Court of Session when proceedings come before any such Court by way of appeal, revision or otherwise. Under Section 18, a delinquent juvenile has to be released on bail in spite of the fact of having committed heinous crime of murder or rape. If he is not to be enlarged on bail, he is to be kept in safe custody/place as ordered under the Act. Punishment of death or life imprisonment has been sttutorily prohibited against a delinquent juvenile under Section 22 of the Act.
8. From a combined reading of all these Sections along with other relevant provisions given in the Act, it is undoubtedly clear that Juvenile Justice Act, 1986 is a complete Code in itself and has sweepingly overriding effect on any other enactment of the State Legislature or Parliament viz. the “Code” regarding inquiry/proceedings or a trial against delinquent juvenile on any criminal charge.
9. While dealing with a petition under Section 18 of the Act as well as a petition for bail, there was sufficient material before the learned Sessions Judge to take action under Sections read with Sections 7(2) of the Act. Matriculation certificate prima facie, to my mind, was sufficient for consideration of the matter forgetting held an inquiry by a Juvenile Court as to determination of age by that Court. Even otherwise, the correctness of matriculation certificate produced by the petitioner was not challenged by the State before the learned Sessions Judge when seized of the matter. That Court has also not expressed any doubt as to authenticity of the certificate. With this material on record and in view of specific application by the petitioner to treat him as a juvenile, the only course open for the learned Sessions Judge was not to proceed in the matter any more and to send the matter to a Juvenile Court/Bench having jurisdiction over Ropar District. The commitment order dated 22-4-1991, so far as it relates to the petitioner is not good in law and accordingly the said order and resultant proceedings are set aside. However, the learned Sessions Judge may proceed against the other accused under the ordinary law after separating the trial of the petitioner under Section 24 of the Act.
10. The papers of this case relating to the petitioner may be sent to the concerned Juvenile Court/Bench of the Ropar District at the earliest. It is further made clear that the Juvenile Court shall hold inquiry under the relevant provisions of the Act as to determination of the age of the petitioner after giving due opportunity of hearing to the complainant party, as the complainant is a person directly concerned in the inquiry in terms of Sub-clause (b) of Section 28(1). The inquiry as to determination of age is of crucial nature and it cannot be held at all at the back of the complainant party especially when besides being aggrieved, the complainant is required to depose against the accused petitioner if ultimately trial takes place under the Code.
11. So far bail matter is concerned, Shri H.S. Sidhu, A.A.G., Punjab, very ably assisted by Shri R. N. Moudgil, counsel for the complainant has opposed the bail application. It has been argued that there is no cogent evidence so far on the record on the point of age and matriculation certificate is not sufficient piece of evidence to entertain the prayer for bail on the crucial point of age. In support of this, reliance has been placed on number of judgments need not be cited as pith and substance of those judgments has been taken note of. In the said judgments it has been stressed that the age is to be determind on the basis of many other factors such as birth entry, occification test, other medical tests and matriculation certificate is not conclusive piece of evidence. There cannot be any dispute that the age is to be determined according to different pieces of evidence and appreciation of this fact depends upon the facts and circumstances of each case. In this case, the petitioner has produced the matriculation certificate. As already stated earlier, correctness of that certificate had not been challenged before the learned Sessions Judge nor has been challenged today before me. The only objection raised is that it is not conclusive. Besides this, it has been further argued that petition under Section 439 was moved before the learned Sessions Judge but now it has been moved under Section 18 of the Act for the concession of bail. As such, there is no application under Section 439 before this Court. I find no substance in this contention. To my mind, labelling of a petition either under Section 18 of the Act or under Section 439, I.P.C. is immaterial. We have to see to a bundle of facts as before the Court. The facts brought before the Court of Sessions Judge were quite sufficient to attract the provisions of Section 18 of the Act. When the petitioner was before the Court below and provisions of the Act were brought to the notice of the Court, it was the duty of the learned Sessions Judge to form a tentative opinion as to whether the petitioner appeared to be less than 16 years of age or not and thereafter, to refer the matter to Juvenile Court or a competent authority. The State counsel has brought to my notice that there is a notification issued by the State and District Ropar falls within the jurisdiction of a Juvenile Court/Bench as constituted under the Act. The learned Sessions Judge having not acted either under Sections 8 or 18 or even under Section 7(3) of the Act, has committed an error of jurisdiction.
12. All these facts being now before me cannot be ignored by me in view of Sections 7(3) and 38 of the Act. While entertaining the prayer for bail in terms of Section 18 read with Section 38 of the Act, I direct that the petitioner be released on bail on his furnishing bail bond to the satisfaction of Chief Judicial Magistrate, Ropar. Resultantly, in view of the discussion made above, the charge framed against the petitioner vide order dated 22-4-1991 directing him to be tried under Section 302/324/34, I.P.C., under ordinary procedure of trial under the “Code”, is quashed and the concession of bail is also granted to the petitioner as stated above.
13. The record of this case is being sent to the Court of Sesions Judge, Ropar with a direction to entrust this case, in due course, to a Juvenile Court/Bench pertaining to District Ropar. It is further made clear for the Juvenile Court/Bench that its limited scope of inquiry is, as to determination of age of the petitioner in terms of the provisions of the Act. In case the said Court comes to the conclusion that the petitioner is not a juvenile under the Act, the matter shall be referred back to the Court of Sessions Judge, Ropar and this order of the bail passed by me shall stand cancelled and the learned Sessions Judge would reconsider the bail matter afresh. If the petitioner is found to be less than 16 years of age at the time of commission of the offence, the Juvenile Court/Bench shall hold an inquiry under Section 20 of the Act following the procedure as given in Section 39 and there after appropriate order shall be passed under Section 21 of the Act.
With these directions, both these petitions stand accepted.
