Parbati Lal Sharma vs Sadhan Rampuria

R.N. Dutt, J.—Opposite party No. 1 surrendered before the Sub-Divisional Magistrate, Howrah, as an accused in a case u/s 302/34 of the Indian Penal Code. He claimed to be a ''child'' within the meaning of the West Bengal Children Act, 1959, and the Sub-Divisional Magistrate acting u/s 6 of the Act forwarded him to the Juvenile Court having jurisdiction. The opposite party No. 1 was then produced before the Juvenile Court and the Juvenile Court made an enquiry as to his age u/s 40 of the Act and made a finding that the age of the opposite party No. 1 at the date of the alleged incident was 16 years 10 months and, as such, he was a ''child'' within the meaning of the Act. The Petitioner, on whose first information report the Police had started the instant case u/s 302/34 of the Indian Penal Code, has thereafter obtained this Rule against this finding of the Juvenile Court.

Mr. Dutt, who appears for the opposite party No. 1 before me, raises a preliminary objection that no revisional application lies against the instant finding of the Juvenile Court in view of Section 48 of the Act. u/s 48 of the Act an appeal lies from an order made by a Juvenile Court either to the Sessions Judge or to the High Court. The question that arises for consideration is, if a finding recorded by the Juvenile Court u/s 40 of the Act, can be said to be an order within the meaning of Section 48 of the Act. Mr. Dutt submits that the finding about age recorded by the Juvenile Court u/s 40 of the Act is in fact an order determining the age of the accused brought before the Court. True, the Court determines the age of the accused brought before him, but Section 40 does not speak of an ''order'' to be made by the Magistrate. On the other hand, Section 40 speaks of a ''finding'' to be recorded by the Magistrate. When we look to other provisions of the Act we find that the word ''order'' has been used in Sections 26, 31(3), 32, 34 and so on. So the question whether the finding made by the Juvenile Court u/s 40 of the Act is an ''order'' within the meaning of Section 48 of the Act will be an important question for determination in an appropriate case, but in the facts of this case I do not feel called upon to make a final decision on this point.

Let me assume that a revisional application does lie. But, even then there is no substance in this application. Mr. Banerjee contends that a Juvenile Court is to make a determination of the age of the accused brought before it u/s 40 only when a challan or a charge-sheet is submitted and the Juvenile Court takes cognizance of the alleged offence- Here in this case, as I have pointed out, no challan or charge-sheet has as yet been submitted and the Juvenile Court has not as yet taken cognizance of the alleged offence, but the opposite party No. 1 is an accused in a case which is pending investigation before the Police and he surrendered before the Sub-Divisional Magistrate, Howrah, who sent him to the Juvenile Court as a child. Mr. Banerjee''s contention is that so long as investigation is pending the Juvenile Court is not called upon to make a finding u/s 40 of the Act. I am unable to accept this contention. Section 40 speaks as follows:

Whenever any person is brought before a Court to be dealt with under any of the provisions of this Act as a child the Court shall make due enquiry...and shall...record a finding....

Section 22 of the act deals with the powers of the Juvenile Court about bail in respect of a child accused. The child accused cannot be dealt with u/s 497 of the Code of Criminal Procedure but must be dealt with u/s 22 of the Act or, in other words, when a child accused is brought before a Juvenile Court he has to be dealt with under the provisions of Section 22 and, in order to enable him to deal with the child accused under the provisions of that section, the learned Magistrate must make a finding whether the accused is a ''child'' within the meaning of the Act or not, and before he makes such a finding he cannot deal with him under the provisions of the Act. Mr. Banerjee refers to Section 28 of the Act and submits that the question of separate trial will arise only when a charge-sheet is submitted. Section 28(1) states that, notwithstanding anything to the contrary contained in Section 239 of the Code of Criminal Procedure, no child shall be charged with or tried for any offence together with an adult. That gives jurisdiction to the Juvenile Court to take separate cognizance and to try the child accused separately even though he is triable with other adult accused persons under the provisions of Section 239 of the Code. u/s 28(2) of the Act when the same Court takes cognizance of the alleged offence, both against the child accused and against adult accused persons, even then the Magistrate has to separate the trial and try the child accused separately. Section 28 deals with the procedure for the trial of the child accused when there are other adult accused liable to be jointly tried under the provisions of Section 239 of the Code. But Section 28 does not state that the Juvenile Court can act u/s 40 only when a charge-sheet is submitted and the Court takes cognizance as the Juvenile Court has got to deal with the child accused under the provisions of the Children Act even before cognizance is taken. The contention of Mr. Banerjee cannot, therefore, be accepted.

Mr. Banerjee does not make much submission in respect of the actual finding about age made by the Juvenile Court, and on the materials on record I do not think that the finding should be interfered with.

In the result, the Rule is discharged.

Let the records be sent down at once.