ORDER
1. The essential controversy in this revision application is whether Sarita and Sharmila, who are admittedly 15 and 17 years old, are to be tried by the Court of Session under the Code of Criminal Procedure, 1973 or to be proceeded with under the provisions of the Juvenile Justice Act, 1986 by the authorities mentioned thereunder.
2. The facts are very simple. For an offence of murder and other related offences under S. 324 and others purported to have been committed on 19th April, 1988, the petitioners along with Satish Narayan Sawant, Mohan Narayan Sawant and Smt. Yeshoda Narayan Sawant were chargesheeted by the Ponda Police. On perusal of the chargesheet on July 8, 1988 the Judicial Magistrate, Ponda, committed aforementioned Satish, Mohan and Smt. Yeshoda to the Court of Session to answer the charge under Sections 302, 323, and 324 read with S. 34 of the Indian Penal Code. Admittedly this was an order made under S. 209 of the Code of Criminal Procedure and while doing that the Magistrate directed that the petitioners be tried by him for the offences under Sections 143, 147, 149, 323 and 504 of the Indian Penal Code. The Magistrate believed that he was perforced to make such order because the Children Act 1960 was in force in this territory and that in the absence of the Children's Court he is himself competent to try them.
3. When the trial began against Satish and others before the Court of Session, Panaji, the learned Sessions Judge on hearing the counsel for the parties and learned Public Prosecutor directed that the petitioners be brought before him for trial by him for the disclosure of the offences under S. 302 and other offences under the Indian Penal Code but, however, further directed having regard to the provisions of the Juvenile Justice Act, 1986 that the trial in relation to the petitioners be held separately. It is against this order that the present revision application is directed by the two juvenile delinquents. The learned Session Judge held that S. 27 of the Code of Criminal Procedure cannot be ignored and when offences are punishable with death or imprisonment for life, such offences will have to be tried by a Court of Session under Criminal Procedure Code.
4. There is great merit in the contention raised by counsel for the two petitioners and on a perusal of few sections of the Juvenile Justice Act, 1986 read with certain sections of the Code of Criminal Procedure it will clearly establish that even in matters of offences punishable with death or imprisonment for life the jurisdiction of the Court of Session is totally excluded. Without much delay I will examine some of the provisions of the Juvenile Justice Act, 1986 along with some relevant provisions of the Code of Criminal Procedure, 1973.
5. In the first place it be noticed that with the enactment of the Juvenile Justice Act, 1986 any law corresponding to that Act stands repealed. It is common ground that with the enforcement of the Juvenile Justice Act, 1986, the Children Act, 1960 stands repealed and the entire field relating to the custody, rehabilitation, punishment, trials are now covered by the Act of 1986. This Act enacted by Parliament in the year 1986 in its preamble states that it is to provide for the care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles and for the adjudication of certain matters relating to, and disposition of delinquent juveniles. By the provision of sub-section (3) of S. 1 the Central Government has brought this Act into force as from 2nd October, 1987. Delinquent Juveniles have been defined in S. 2(e) to mean juvenile who has been found to have committed an offence. A Juvenile means a boy who has not attained the age of 16 years and a girl who has not attained the age of 18 years and this is spoken to in S. 2(h). Offence has been defined under S. 2(n) to mean an offence punishable under any law for the time being in force. On a combination of reading Sections 2(e) and 2(n), that is to say, definition of 'delinquent juvenile' and 'offence', no distinction has been made between a major and a minor offence and it is as if the gravity is immaterial.
6. Under The Scheme of the Act a Juvenile Welfare Board is sought to be established for talking care of neglected juveniles and establishment of Juvenile Court for the purposes of dealing with delinquent juveniles and this is clear from Sections 4 and 5 thereof. Regard being had to what has happened presently in this, case, I may advantageously extract S. 5. It requires every State Government to establish one or more juvenile Courts for exercising and discharging powers and duties conferred and imposed on such Courts in relation to delinquent juveniles. It further says that a Metropolitan Magistrate or a Judicial Magistrate, First Class as the case may be to form a bench out of whom one to be designated as a Principal Magistrate and the Court to be further assisted by a panel of two honorary social workers of which one to be a woman. Section 5 reads thus :-
'5.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government may, by notification in the Official Gazette, constitute for an area specified in the notification, one or more Juvenile Courts for exercising the powers and discharging the duties conferred or imposed on such Court in relation to delinquent juveniles under this Act.
(2) A Juvenile Court shall consist of such number of Metropolitan Magistrates or Judicial Magistrates of the first class, as the case may be, forming a Bench as the State Government thinks fit to appoint, of whom one shall be designated as the Principal Magistrate; and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973, on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the First Class.
(3) Every Juvenile Court shall be assisted by a panel of two honorary social workers possessing such qualifications as may be prescribed, of whom at least one shall be a woman, and such panel shall be appointed by the State Government.'
Section 7 says that a Juvenile Court when constituted for any area shall notwithstanding anything contained in any other law in force but save as otherwise expressly provided in the Act have powers to deal exclusively with all provisions under the Act relating to delinquent juveniles. Sub-section (2) of S. 7 makes a provision for the interregnum when no Juvenile Court under the Act is established, the powers thereof to be exercised by (a) District Magistrate (b) Sub-Divisional Magistrate (c) any Metropolitan Magistrate or Judicial Magistrate of the First Class, as the case may be. It may be a little relevant to notice at this stage that all or any other powers conferred on the Juvenile Court may be exercised by the High Court or a Court of Session when the proceedings comes before such Court either in an appeal or revision.
I will have therefore seen that S. 5(1) starts with a non obstinate clause 'notwithstanding anything contained in the Code of Criminal Procedure, 1973' and under S. 7(1) the mandate and sweep is notwithstanding anything contained in any other law for the time being in force with the further predicate 'but save as otherwise expressly provided in this Act.'
7. Coming to S. 21 which deals with orders to be passed by the Juvenile Courts the same provides that if a juvenile Court is satisfied on inquiry that a juvenile has committed an offence, then, again, notwithstanding anything to the contrary contained in any other law for the time being in force the Juvenile Court to make any of the orders as follows :
'21(1) Where a Juvenile Court is satisfied on inquiry that a juvenile, has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Juvenile Court may, if it so thinks fit :
(a) allow the juvenile to go home after advice or admonition;
(b) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety as that Court may require, for the good behavior and well-being of the juvenile for any period not exceeding three years :
(c) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behavior and well-being of the juvenile for any period not exceeding three years;
(d) make an order directing the juvenile to be sent to a special home :
(i) in the case of a boy over fourteen years of age or of a girl over sixteen years of age, for a period of not less than three years;
(ii) in the case of any other juvenile, for the period until he ceases to be a Juvenile;
Provided that the Juvenile Court may if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit; provided further that the Juvenile Court may, for reasons to be recorded, extend the period of such stay, but in no case the period of stay shall extend beyond the time when the juvenile attains the age of eighteen years, in the case of a boy, or twenty years, in the case of a girl;
(e) order the juvenile to pay a fine if he is over fourteen years of age and earns money.'
Before anything more it can be in the first place observed that the Act of 1986 does not even make a reference to the punishment to a delinquent juvenile and all that it says in S. 21 is the orders that may be passed against them by the Juvenile Court. By now we have seen that the so-called orders that may be passed are that a delinquent juvenile shall remain under the supervision of a probation officer or that he could be made over to a parent or guardian or other fit person or fit institution under whose care the juvenile is supposed to be placed or to be forwarded to a special home. S. 22 of the Act is of great assistance which further makes the matter amply clear and which reads thus :
'22(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 no serious a nature or that his conduct and behavior 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.
(2) On receipt of a report from a juvenile Court under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such delinquent juvenile to be detained at such place and on which conditions as it thinks fit; provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the juvenile could have been sentenced for the offence committed.'
Section 24 again starts with a non obstante clause that not with standing anything contained in S. 223 of the Code of Criminal Procedure, 1973 or any other law for the time being in force, no juvenile shall be charged with or tried for, any offence together with a person who is not a juvenile. In other words even where the Code of Criminal Procedure, 1973 provides for a joint trial under S. 223 thereof there is total prohibition is that regard and delinquent juvenile will have to be tried separately. S. 25 in terms states that even when a juvenile has committed an offence and has been dealt and proceeded with the provisions of the Act of 1986 such a juvenile, shall not suffer disqualification attached to a conviction of an offence under such law.
8. It may not be out of place to make a reference to S. 26 which also takes care of the proceedings already pending prior to the enforcement of the Act 1986. On recording a finding against a juvenile delinquent as, from the enforcement of this Act the Court is required to send the proceedings to the Juvenile Court to pass appropriate orders in respect of juveniles in accordance with the Act of 1986. A reference at this stage to S. 3 and S. 18 of the Act may not be again out of place and that S. 3 says where an inquiry has been initiated against a juvenile and if during the course of such inquiry the juvenile ceases to be as such then notwithstanding anything contained in this Act or any other law for the time being in force the inquiry to be continued and order to be made against that person as if that person continued to be a juvenile. S. 18 makes it compulsory that a juvenile delinquent even when accused of a bailable or non-bailable offence then notwithstanding anything contained in the Code of Criminal Procedure 1973 or any other law for the time being in force is bound to be released on bail with or without surety. Therefore the sweep is that even in the matters of non-bailable offences the juvenile has to be released on bail except when Court comes to hold that the release is likely to bring such juvenile into association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice. When a police officer arrests and in the event of refusal of the bail the mandate is that such officer in charge of the police station has to forward the delinquent to an observation home but not at a police station or jail. Similar is a duty cast on a Juvenile Court when it rejects the bail application with the result that at every stage pre-trial and post-trial there is no detention in custody or in jail.
9. Coming to the provisions of the Code of Criminal Procedure, 1973 I will notice Sections 4, 5, 6 and 27. All offences under, the Indian Penal Code are to be investigated, inquired into, tried and otherwise dealt with according to the, provision of the Code of Criminal Procedure and this is spoken to in sub-section (1) of S. 4 thereof. Sub-section (2) says that offence under any other law shall be investigated, inquired into, tried or otherwise dealt with according to the, same provisional but, however, subject to any enactment for the time being in force regulating the manner or place. In the absence of specific provision to the contrary nothing contained in the Code of Criminal Procedure, shall affect any special or local law for the time being in force or any special jurisdiction or special power conferred or any special form of procedure prescribed by any other Law for the time being in force, this is spoken to in S. 5.
Section 6 deals with the creation of classes of Criminal Courts namely besides the High Courts and the Courts constituted under any other law other than the Code of Criminal Procedure every State to have the following Courts (i) Court of Session; (ii) Judicial Magistrate First Class and in metropolitan area, Metropolitan Magistrate (iii) Judicial Magistrate of the second class and (iv) Executive Magistrates. It is common ground that a Metropolitan Magistrate or Judicial Magistrate First Class is empowered to try offences and impose sentences for offenders for a term not exceeding 3 years and a fine not exceeding Rs. 5,000/-. Any sentence exceeding 3 years or a fine exceeding Rs. 5,000/- will have to be tried by the Court of Session except that a Chief Judicial Magistrate is empowered to inflict sentence not exceeding 7 years. The only other limitation on the power of the Sessions Judge is that in the event he awards a penalty of death it is subject to confirmation by the High Court and this is spoken to in Sections 28 and 29 thereof.
10. The difficulty however appears to be posed by S. 27 of the Code of Criminal Procedure.
Section 27 reads thus :
'27. Jurisdiction in the case of juveniles -
Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960 (60 of 1960) or any other Law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.'
11. In the present case the alleged offence is said to have been committed on 19th April, 1988. The Code of Criminal Procedure, 1973 is in force from 1st April, 1974. We have already noticed that the Juvenile Justice Act, 1986 is enforced from 2nd October, 1987. Therefore the offences allegedly committed by the petitioners who are admittedly delinquent juveniles are after the enforcement of the Juvenile Justice Act, 1986.
12. The question therefore now is which Court will try them, is it the Court of Session or the Juvenile Court or in the absence of later the concerned Judicial Magistrate First Class Answer to this question does not pose much difficulty, regard being had to the various provisions of the Juvenile Justice Act, 1986 and certain other provisions of Code of Criminal Procedure to which I have made abundant reference. Notwithstanding the provisions contained in the Code of Criminal Procedure, 1973 and again the expression 'but expressly made by the provisions of the Juvenile Justice Act, 1986' are read in many provisions of Act of 1986. The jurisdiction of all Courts other than the Juvenile Court has been tacitly and expressly ousted and the juveniles are liable to be dealt with only by the Juvenile Court constituted under S. 5 read with S. 7 thereof. Further regard being had to S. 7(2) where a Juvenile Court has not been constituted for any area the Judicial Magistrate First Class is empowered to deal with juvenile delinquents. The notion of creation of classes of Courts limiting its power to impose sentences as envisaged in the Code of Criminal Procedure, 1973 cannot be imported to deal with cases of delinquent juvenile for Section 22 is a clear bar or puts embargo. In no case a delinquent juvenile is liable to be sentenced to death or imprisonment or committed to prison in default of payment of fine. The recovery of fine from a juvenile is only when the juvenile is over 14 years of age and is found to be earning. When the Act 1986 makes no provision of sentencing the juvenile for any term of imprisonment or even imposing fine otherwise then the case stated above it is clear that the class of Courts envisaged in the Code of Criminal Procedure are not attracted and in this view of the matter even when a delinquent juvenile is charged for an offence punishable with death or imprisonment for life a delinquent juvenile cannot be tried by a Court of Session because the Code of Criminal Procedure, 1973 states so under S. 27 thereof but, however, he will have to be dealt with only under the provisions of the Juvenile Justice Act, 1986 and the Court created thereunder, being a special law.
13. It is true that Section 27 of the Code of Criminal Procedure opens out with the expression 'any offence not punishable with death or imprisonment for life when committed by a person under the age of 16 years to be tried by a Chief Judicial Magistrate or by a Court specially empowered under the Children Act, 1960. This provision gives an impression at the first flush that when the offence is punishable with death or imprisonment for life cannot be dealt with by the specially empowered Court but in reality it is not so. Section 21 of the Juvenile Justice Act, 1986 confers jurisdiction solely on a Juvenile Court to be constituted under S. 5 read with S. 7 and in the absence thereof on the Judicial Magistrate First Class under sub-section (2) of S. 7 because the Juvenile Justice Act, 1986 has been enacted by Parliament in the year 1986 knowing full well that the Code of Criminal Procedure, 1973 is in full force throughout the Territory of India except the State of Jammu and Kashmir. In other words the Parliament was aware of the provision of Section 27 of the Code of Criminal Procedure and yet enacted the present law in 1986. Again the Act is enacted for the care, treatment, protection, development and rehabilitation of the Juvenile and for adjudication of certain matter and other dispositions. There is no theory of punishment imported into the Act and the whole thrust is on the protection, development and rehabilitation. Admittedly juveniles cannot be sent to prison, bail cannot be refused and the maximum that happens is juvenile delinquents given in care of either the probation officer or in the care of a parent or some fit person or institution but not by a way of punishment but only with a view to rehabilitate them. They suffer no disqualification even when the offence is proved, no matter the gravity of the offence. For all these reasons therefore the jurisdiction of the Courts created by Code of Criminal Procedure to try juvenile delinquents is totally excluded even when the offence is punishable with death or imprisonment for life.
14. I may further observe that the law relating to juveniles, both neglected and delinquent, is a part of the Human Right Legislation. In construing Human Right Legislation which is a welfare statute must of necessity receive a broad interpretation. Where a legislation is designed to give relief against certain kind of mischief it is not open to the Courts to make inroads and divest jurisdiction of the Courts which are specially created or empowered. There can be no dispute that the Juvenile Justice Act is designed to take care of giving protection, providing treatment, development and rehabilitation of neglected and delinquent juveniles and being so the Court must be more concerned with the colour, content and context of such legislation. This expression is borrowed from Lord Wilberforce in Prann v. Simmonds.
15. I am otherwise supported in the view I am taking in the matter by the decision of Raghbir v. State of Haryana, reported in : 1981CriLJ1497 . The matter there related to the Haryana Children Act, 1974. The question was whether the conviction rendered by the Sessions Court on trial under Criminal Procedure Code on Raghbir who was admittedly a juvenile was sustainable regard being had to Section 27 of the Code of Criminal Procedure, 1973. In the first place it was contended that having regard to the provision of Art. 254(1) of the Constitution the provision of the Haryana Children Act, 1974 in relation to dealing with delinquents is repugnant to S. 27 of the Code of Criminal Procedure and being so the latter must prevail and therefore the conviction be sustained. It was negatived by the Supreme Court. Despite peculiar situation in that case that Haryana Children Act, 1974, a local law was brought into force on 1st March, 1974 in the State of Haryana before the Code of Criminal Procedure, 1973 came into force on 1st April, 1974 the Supreme Court held that there is no repugnance whatsoever and that the provision of the local Act, Haryana Children Act, 1974 must prevail and conviction was set aside.
16. In my view the present case rests on much stronger and higher footing because the Juvenile Justice Act, 1986 is enacted and brought into force much after the Code of Criminal Procedure, 1973 which has been already in force. A contrary view taken by the Full Bench of Madhya Pradesh High Court in the decision of Devisingh v. State of Madhya Pradesh, reported in : AIR1978MP100 , was disapproved in this decision. The Full Bench of the Madhya Pradesh High Court while dealing with a case under Bal Adhiniyam had observed that the Code of Criminal Procedure being a later Central enactment must supersede Bal Adhiniyam which was in force in the State of Madhya Pradesh. The dissenting view taken by Varma, J., in that Full Bench decision was approved by the Supreme Court. In my view therefore this decision of the Supreme Court otherwise very squarely applies to the case in hand and there can be no difficulty that the jurisdiction of all other Courts is ousted and it is solely conferred on Juvenile Court to be constituted under the Juvenile Justice Act, 1986 and in the absence of the constitution of such Court by the concerned Magistrate First Class.
17. Coming back to the case in hand there can be no difficulty that the petitioners will have to be dealt with, I am afraid that I will not be able to say that they will be tried, because there is no place for a trial as ordinarily understood, by the Juvenile Court and in the absence thereof by the concerned Judicial Magistrate, First Class within whose jurisdiction the offence is alleged to have been committed vide sub-section (2) of S. 7 of the Act. The impugned judgment and order of the learned Sessions Judge dated 19th October, 1988 insofar as it directs separate trial by itself qua the petitioners under Sections 302, 323, 143, 147 and 149, Indian Penal Code is hereby quashed and set aside. As the alleged offences were committed within the jurisdiction of the Judicial Magistrate Ponda, he shall deal with the petitioners under the provisions of the Juvenile Justice Act. 1986 on whatever offences disclosed in the chargesheet.
I am grateful to Shri Bhobe, learned Public Prosecutor, for the assistance rendered by him in this matter.
18. Criminal Revision Application succeeds. Rule made absolute. The trial in relation to the other respondents be proceeded with from the stage where it was stopped by the Sessions Judge.
19. Petition allowed.