S.N. Pathak, J.
1. In this miscellaneous case the order passed by the lower Court on 16-1-1999 has been challenged.
2. The Sessions Court in Session Trial No. 347/1993 has directed the trial of an accused, Prabhakar Prasad to be held by a Juvenile Court instead of his trial with other accused persons of the case. It was submitted before me by the petitioner's lawyer, who is the informant of the case relating to the aforesaid sessions trial that the accused, Prabhakar Prasad, Opposite party No. 2, failed to take the plea of minority either in the commital Court or in the Sessions Court prior to the stage when several witnesses were examined. So the plea taken at the belated stage would not be entertained and, therefore, the Sessions Court was wrong in remitting the case of the accused-opposite party No. 2 to the Juvenile Court. The Sessions Court was rather competent to try the case of Prabhakar Prasad along with other accused persons and conclude it under the provisions of law. The petitioner's lawyer relied on the two decisions reported in (1996) 1 Pat LJR 73 : (AIR 1996 SC 905) Abdul Mannan v. The State of West Bengal and the decision reported in 1999 (2) PLJR 660.
3. Before I discuss the questions raised in this miscellaneous case, I would like to refer to the facts of the two decisions referred to above. In Abdul Mannan (AIR 1996 SC 905) (supra), the Supreme Court was entertaining the appeal against the judgment of the Sessions Court of the State of West Bengal. Two questions were raised in that case before the Supreme Court; firstly, whether the Additional Sessions Judge was a Sessions Judge and whether a Juvenile under the West Bengal Children Act, 1959 was entitled to the benefit of the Juvenile Justice Act (Central Act) which had intervened during the period of trial of the juvenile. The Supreme Court held that the Addl. Sessions Judge was very much a Sessions Court as defined in the Code of Criminal Procedure and it was further held that since under the West Bengal Children Act, 1959, no juvenile Court was constituted and when the Central Act came into force, the concerned accused had already become major and hence the judgment of conviction recorded by the Sessions Court was justified and the benefit to the juvenile under the Central Act was no longer available to him.
4. In the second decision referred to by the petitioner's lawyers reported in (1999) 2 Pat LJR 660, the learned single Judge of this Court relied on the aforesaid decision of the Supreme Court and some other judgments of other States and came to the conclusion that an accused who attains majority during the trial of the Sessions Court is not entitled to the benefit of the Juvenile Justice Act, 1986 (in short 'the Act').
5. However, I find that the Hon'ble Supreme Court in the case of Gopinath Ghosh v. State of West Bengal AIR 1984 SC 237 : (1984 Cri LJ 168) decided that the plea of minority can be taken at the stage of appeal also. Our own High Court in Krishna Bhagwan v. State of Bihar 1989 Pt LJR 507 : (AIR 1989 Patna 217) (FB) also decided that the plea of minority can be taken even at the stage of appeal. The five Judges Bench of this Court in its majority view in the case reported in 2000 (3) PLJR 802 also held that the plea of minority can be taken at any stage, either during the course of trial or in appeal and an accused, who was minor on the date of commission of the offence, cannot be deprived of the benefit available to him under the Juvenile Justice Act, 1986, which come into force on 2nd October, 1987 (in short 'the Act'). So the plea in this miscellaneous case taken by the petitioner's lawyer that the order of the Sessions Judge entertaining the prayer of the accused, Prabhakar Prasad, when already several witnesses were examined in the case, to be erroneous is not palatable to me. In the Constitution Bench judgment referred to above (2000) 3 Pat LJR 802 several other decisions of the Supreme Court have been referred to besides the same, as I have mentioned above, and how it is the settled principle of law that the plea of minority by the minor-accused can be taken at any stage even though he attains majority when trial commences or when he prefers an appeal against his conviction. To add to the aforesaid decisions, I am to refer to Section 3 of the Juvenile Justice Act, 1986, which is reproduced hereinbelow :-
Where an inquiry has been initiated against a juvenile and during the course of such inquiry the juvenile ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile.
6. From the aforesaid provision, it is apparent that even if a juvenile attains majority during the course of inquiry under this Act, regarding his plea of minority, that enquiry has to be continued and orders have to be passed under this very Act.
7. Section 26 of the aforesaid Act may also be referred to for further elaboration of the law in this connection which has been reproduced below :-
Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Juvenile Court which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that the juvenile has committed the offence.
8. From the aforesaid provisions also, it is apparent that a regular Court, which is trying a jevenile and finds him to be guilty, cannot record an order of sentence and the juvenile has to be sent back to the Juvenile Court for proper orders under that Act. The Act has provided for orders to be passed under Sections 21 and 22 (for the Act) after inquiry of the guilt of the concerned juvenile.
9. In the instant case when the Sessions Court passed the impugned order, the Act was already in force and the plea of minority was taken by Prabhakar Prasad before the conclusion of trial. Of course, the concerned accused failed to raise this plea either in the committal Court or in the cognizance taking Court and in the sessions trial before the date on which he took this plea. But, however, when the Sessions Judge passed the impugned order it was still not much late and the Sessions Court had already called for a report from the Medical Board, not once but twice, and held that the concerned accused was a juvenile at the time of commission of the alleged offence. So the Sessions Court perhaps passed the impugned order in order to prevent the misuse of process of law as enjoined under the Act before it was too late.
10. So far the question raised in this miscellaneous case by the petitioner's lawyer that the Sessions Court was competent to try the case of the accused as there was no Juvenile Court, I am of the opinion that Section 7 of the Act has clearly laid down that when no special juvenile Court is constituted as mandated under Section 5 of the Act, the District Magistrate or, Sub-Divisional Magistrate or Metropolitan Magistrate or Judicial Magistrate, 1st Class shall be deemed to be the Juvenile Court and shall exercise the same powers. So the Act itself has laid down that when no Courts are constituted, the Courts mentioned in Section 7 of the Act shall exercise the powers of Special Juvenile Court. So the question raised in this miscellaneous case by the petitioner's lawyer is, irrelevant and already there was a Juvenile Court when the Sessions Judge passed the impugned order. The order impugned, therefore, it may considered opinion does not suffer from any illegality or irregularity necessitating any interferance by this Court.
In the result, this miscellaneous case is dismissed.