B. Chandra Kumar, J.
1. This Revision Case has been filed by A-1 to A-3 against the Judgment, dated 22- 03-2004 in Crl.A. No. 24 of 2001 passed by the II Additional Sessions Judge, Kadapa at Proddatur, whereby the Appeal filed by the petitioners was dismissed confirming the conviction and sentence passed by the I Additional Judicial First Class Magistrate in C.C. No. 108 of 2000, dated 25-01-2001.
2. Originally the case was filed against A-1 to A-6. A-1 and A-3 were convicted for the offence under Section 324 of IPC and sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 500/-, in default to suffer simple imprisonment for a period of one month. A-2 was convicted for the offence under Section 324 of IPC and sentenced to undergo simple imprisonment for a period of three months. A-2 was also convicted for the offence under Section 326 of IPC and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for a period of one month. A-4 to A-6 were found not guilty and they were acquitted of the charges framed against them.
3. A-1 is the father of A-2 and husband of A-6. A-3 is the father of A-4 and husband of A-5. A-1 raised a dispute with Palam Subbanna (PW-1) claiming a right in the rastha site located in front of the house of PW-1.
4. The specific case of the prosecution is that on 22-03-2000 at about 7-30 PM, while PWs.1 and 2 were standing in front of their house at Kummarakottalu, Proddatur, A-1 to A-6 formed themselves into an unlawful assembly armed with iron rods and sticks with the common object to assault PWs.1 and 2 went to their house. A-1 dealt a blow with the iron rod on the right side of the head of PW-1. A-2 dealt a blow with an iron rod on the left knee of PW-1. When PW-2 intervened, A-2 dealt a blow with the iron rod on the head of PW-2 and on her right fore arm. A-4 to A-6 dragged PW-2 on the floor, as a result of which PW-2 sustained abrasions to her both knees. When PW-3 intervened, A-3 dealt a blow with stick above the right eye of PW-3. PW-4 and one Subbarayudu witnessed the incident. PW-1 and the injured proceeded to the III Town Police Station, Proddatur and PW-6, A. Nagabhusanam, the Assistant Sub-Inspector of Police, recorded the statement of PW-1 under Ex.P-1 and basing on the same, he registered a case in Crime No. 27 of 2000 for the offences punishable under Sections 147, 148, 324 and 326 read with 149 of IPC against the Accused and issued Ex.P-4, FIR. He examined PWs.1 to 3, recorded their statements and seized the blood stained clothes from the injured and sent them to the hospital for treatment. The Investigating Officer visited the scene of offence, examined some more witnesses, arrested the accused and after completing the investigation and obtaining wound certificates, laid charge sheet against the Accused. The Accused denied the charges and the prosecution examined PWs.1 to 7 and got marked Exs.P-1 to P-8 in order to prove it's case.
5. As seen from the evidence let in, the learned Counsel appearing for the Accused in the trial Court suggested to PW-1 that A-2 was studying 10th class and that he was aged about 16 years. Of course PW-1 denied the said suggestion that A-2 was aged about 16 years old. Again when PW-1 was recalled and further cross-examined, a specific suggestion was given to him that A-2 was only 14 years old and that he was falsely implicated in this case to spoil his future. A similar suggestion was given to PW-2 that A-2 was studying 10th class. On behalf of the Accused, DW-1 was examined, who was working as a Lecturer in a private college. He has deposed that he was imparting tuition to A-2 during the year 2000 everyday from 5 PM to 9 PM and that A-2 was studying 10th class and that on 22-03-2000 i.e., the date of offence, A-2 was present in his house from 5 PM to 9 PM. Thus by giving the above suggestions, A-2 had taken the specific pleas of alibi and that he was a juvenile as on the date of offence. It is clear that the learned Magistrate did not make any enquiry to ascertain the age of A-2 and inspite of the above suggestions, he proceeded with the trial. Of course it is also a fact that no petition was filed on behalf of A-2 to treat him as a juvenile or to stop the proceedings pending before the Magistrate.
6. It is an admitted case that A-2 had taken a specific plea before the Appellate Court, but the learned Sessions Judge, Proddatur, has observed as follows:
The incident took place on 22.3.2000, the age of A.2 is shown as '19' years. There is cross examination regarding the age of A.2. It is also suggested to PW.1 and PW.3 that A.2 was studying tenth class at the time of incident, but P.Ws.1 and 3 deposed that they do not know.
The learned Sessions Judge further observed as follows:
DW-1 deposed at the time of incident the Accused (A-2) was studying S.S.C. and undergoing tuition. The accused produced the original S.S.Certificate held in March, 2000, issued on 8.5.2000 by Secretary, Board of Secondary Education, wherein his date of birth is shown as 8.6.85. He also produced a birth certificate issued by Mandal Revenue Officer, basing on the school record as 8.6.85 and he also filed a study certificate from Ibrinal Vocational Junior College, Rayachoty showing that A.2 is studying M.P.H.W (M0. A.2 not produced extract from authenticate register i.e., Birth Register which is an authenticate document regarding birth. The date of birth in S.S.C. is not an authenticate date of birth. If really the accused was juvenile at the time of incident, the defence counsel ought to have raised the same for getting benefit before the trial court, but there is no such plea taken by A.2 or his counsel. If the age of A.2 is calculated basing on the date of birth in S.S.C. the A.2 might be 14 years, nine months and 14 days, but A.2 himself not disclosed that either he was studying S.S.C. or he was below 16 years, it cannot be expected the age mentioned in S.S.C. is correct, unless the extract from the birth register which is authenticated document. The date of birth mentioned in S.S.C. cannot be considered as genuine.
The learned Sessions Judge further held that since A-2 did not file any petition to declare him as juvenile and failed to file extract from birth register and that the date of birth mentioned in S.S.C. cannot be considered as genuine and authentic. It is also held that when A-2's age is shown as 19 years in the charge sheet, it was not challenged, therefore, now A-2 cannot be permitted to take the plea that he is juvenile at the time of incident. Thus the Appellate Court rejected the plea of A-2 that he is juvenile. It appears that A-2 had filed original S.S. Certificate and birth certificate issued by the M.R.O. and also examined DW-1 on his behalf. The evidence adduced by A-2 was not considered on the ground that he failed to produce extract from the birth register. It appears that the prosecution did not dispute genuineness of the S.S.C. and birth certificate issued by the M.R.O. Admittedly, no enquiry was conducted by the Appellate Court. It has to be seen that A-2 approached the M.R.O. and obtained a birth certificate. It is not clear under what circumstances the extract from the birth register could not be produced. Nothing prevented the learned Sessions Judge from summoning the extract from the birth register directing the concerned authorities to produce the same. There is nothing on record to show that A-2 was directed to obtain a copy of the extract from the birth register. Thus the findings of the appellate Court that the date of birth mentioned in S.S. certificate is not authenticated one and that the other documentary evidence produced by A-2 are not relating, appears to be based on surmises and conjectures. There is no basis for the learned Sessions Judge to come to a conclusion that A-2 is not juvenile more particularly in the absence of contra evidence. Of course the age of A-2 was shown as 19 years in the charge sheet. The cross-examination of PW-1 would show that a specific suggestion was given to him that A-2 was aged about 14 years.
7. Now we have to see whether the trial Court was justified in not making any enquiry to ascertain the age of A-2 and whether the Appellate Court was justified in rejecting the claim of A-2. Whether the trial of A-2 is vitiated for trying him along with other accused, who are not juveniles by a regular Court.
8. Therefore, let us examine the relevant provisions with regard to the children in the constitution of India and in the relevant Acts.
9. Our Constitution gives much importance to the welfare of the children. Clause (3) of Article 15 of the Constitution of India enables the State to make special provisions inter alia for children, which reads as follows:
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:
(1)...
(2)...
(3) Nothing in this Article shall prevent the State from making any special provision for women and children.
Article 24 of the Constitution of India reads as follows:
24. Prohibition of employment of children in factories, etc.-No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
Article 39(e) and (f) of the Constitution of India reads as follows:
39. Certain principles of policy to be followed by the State.-The state shall, in particular, direct its policy towards securing-
(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
[(f) 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 and against moral and material abandonment].
10. These constitutional provisions show great anxiety of the constitution makers to protect and safeguard the interests and welfare of the children in the country. The Government of India have also in pursuance of these constitutional provisions evolved a national policy for the welfare of the children and in the preamble it is stated as follows:
The nation's children are a supremely importance asset. Their nurture and solicitude are our responsibility. Children's programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skills and motivations needed by society. Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our larger purpose of reducing inequality and ensuring social justice.
11. The great concern for the welfare of the children at the international level culminated in the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on 20th November, 1959. The declaration in its Preamble points out that 'the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth', and that 'mankind owes to the child the best it has to give'.
12. It is the experience of the society that a child can be moulded so that he can become a good citizen. Todays children are tomorrows citizens. If we are successful in treating the children with love and affection and take proper care for their welfare, then those children in future will become good citizens and they would know their duties towards their nation, fellow human beings and family members. Responsible attitude, lovely and kind treatment of the parents, teachers and other family members and elders mould the children as healthy children and in future responsible and duty minded citizens. The children who are loved and treated with care and affection would certainly become good citizens and they love the human beings and treat other living beings kindly. If the children are ill-treated and tortured, then the seeds of hatred would develop in their minds and in future they may become criminals. A study of the children kept in observation homes reveals that 70% of the children are from disturbed families. The children, when abandoned by both the parents or either of them and neglected by the near and dear, and who have no support would be forced to work in hazardous conditions. When they run away from such situations and found wandering, sometimes they are made as bounded labourers or implicated in false criminal cases and in some other cases antisocial elements, bootleggers, smugglers may take control of such children and use them for their anti social and anti national activities. Thus the ill-treatment and the torture of the children make the children hatred and sometimes make them hard and criminals. Thus it is the socio economic conditions particularly the poverty which force the children to leave their houses and therefore, a great responsibility lies on the society, on the government and social organizations to pick up such children and provide them basic needs and treat them with love and affection and see that they become good citizens.
13. The Hon'ble Supreme Court in Lakshmi Kant v. Union of India : [1984]2SCR795 extracted the national policy and also the principles laid down by the declaration of rights of the child adopted by the General Assembly of the United Nations and observed that:
Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family.
14. In the above decision, the Hon'ble Supreme Court, while dealing with the issue of adoption of children under the Guardians and Wards Act, 1890, discussed the importance of the child welfare and held that:
It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a 'supremely important national asset' and the future well-being of the nation depends on how its children grow and develop. The great poet Milton put it admirably when he said:Child shows the man as morning shows the day' and the Study Team on Social Welfare said much to the same effect when it observed that 'the physical and mental health of the nation is determined largely by the manner in which it is shaped in the early stages'. The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breath, depth and height of its emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why there is a growing realisation in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire self-confidence and self-respect and a balanced view of life with full appreciation and realisation of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process. In India this consciousness is reflected in the provisions enacted in the Constitution. Clause (3) of Article 15 enables the State to make special provisions inter alia for children and Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses (e) and (f) of Article 39 provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children in the country.
15. While dealing with the Juvenile Justice Act, the Hon'be Supreme Court in Pratap Singh v. Staet of Jharkhand : 2005CriLJ3091 held as follows:
Thus, the whole object of the Act is to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles. It is a beneficial legislation aimed at making available the benefit of the Act to the neglected or delinquent juveniles. It is settled law that the interpretation of the statute of beneficial legislation must be to advance the cause of legislation for the benefit of whom it is made and not to frustrate the intendment of the legislation.
The legislation relating to juvenile justice should be construed as a step for resolution of the problem of juvenile justice which was one of tragic human interest which cuts across national boundaries. The said Act has not only to be read in terms of the Rules but also the Universal Declaration of Human Rights and the United Nations Standard Minimum Rules for the Protection of Juveniles.
16. The Hon'ble Supreme Court in the case between R.D. Upadhyay v. State of A.P. : AIR2006SC1946 , observed as follows:
Various provisions of the Constitution and statutes have been noticed earlier which cast an obligation on the State to look after the welfare of children and provide for social, educational and cultural development of the child with its dignity intact and protected from any kind of exploitation. Children are to be given opportunities and facilities to develop in a healthy manner and in a condition of freedom and dignity. We have also noted U.N. conventions to which India is a signatory on the Rights of the Child.
This Court has, in several cases, accepted International Conventions as enforceable when these Conventions elucidate and effectuate the fundamental rights under the Constitution. They have also been read as part of domestic law, as long as there is no inconsistency between the Convention and domestic law.
In Sheela Barse v. Secretary, Children's Aid Society : [1987]1SCR870 which dealt with the working of an Observation Home that was maintained and managed by the Children's Aid Society, Bombay, it was said:
Children are the citizens of the future era. On the proper bringing up of children and giving them the proper training to turn out to be good citizens depends the future of the country. In recent years, this position has been well realised. In 1959, the Declaration of all the rights of the child was adopted by the General Assembly of the United Nations and in Article 24 of the International Covenant on Civil and Political Rights, 1966. The importance of the child has been appropriately recognised. India as a party to these International Charters having ratified the Declaration, it is an obligation of the Government of India as also the State machinery to implement the same in the proper way. The Children's Act, 1948 has made elaborate provisions to cover this and if these provisions are properly translated into action and the authorities created under the Act become cognizant of their role, duties and obligation in the performance of the statutory mechanism created under the Act and they are properly motivated to meet the situations that arise in handing the problems, the situation would certainly be very much eased.
17. After a review of the working of the Juvenile Justice Act, 1986 (for short '1986 Act') the Legislature thought that greater attention is required to be given to children in conflict with law or those in need of care and protection. Accordingly, the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short '2000 Act') has been enacted, which came into force w.e.f. 01-04-2001 repealing the earlier Act of 1986.
18. The first para of the preamble of the 2000 Act reads as follows:
An Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation and for matters connected therewith or incidental thereto.
One of the objects of 2000 Act is as follows:
To provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship and aftercare of abandoned, destitute, neglected and delinquent juvenile and child.
19. The Legislature in their wisdom thought that juvenile justice board should be constituted with the persons having special knowledge, child psychology and child welfare and the observation homes and special homes should provide necessary facilities for re-socialization of a juvenile.
20. Section 4(3) of 2000 Act reads as follows:
4. Juvenile Justice Board:- (3) No Magistrate shall be appointed as a member of the Board unless he has special knowledge or training in child psychology or child welfare and no social worker shall be appointed as a member of the Board unless he has been actively involved in health, education, or welfare activities pertaining to children for at least seven years.
Section 7A of the 2000 Act reads as follows:
7A. Procedure to be followed when claim of juvenility is raised before any Court:-- (1) whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an enquiry, take such evidence as may be necessary (but not affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the Court finds a person to be a juvenile on the date of commission of the offence under Sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall deemed to have no effect.
Section 3 of 2000 Act reads as follows:
3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile:-- Where an inquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child 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 or a child.
21. The Act envisages that the Government may provide for the management of the observation homes including the standards and various types of services to be provided by them for rehabilitation and social integration of a juvenile.
22. Section 15 of the 2000 Act deals with the orders that may be passed regarding juvenile. Section 16 deals with the orders that may not be passed against the juvenile. Section 18 envisages that notwithstanding anything contained in Section 223 of the Code of Criminal Procedure, 1973 or in 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. Section 19 of the 2000 Act envisages that notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.
23. The controversy as to whether the determination of the age of the child should be made on the basis of the date on which the incident took place or when he was produced before the Court has been settled by the Constitutional Bench in Pratap Singh's case : 2005CriLJ3091 (supra), wherein it was held that the date of commission of the offence would be the relevant date. Thus as on the date of offence in this case, if the documents filed by A-2 which are not disputed by the prosecution, if considered, A-2 was a juvenile.
24. In Pratap Singh's case : 2005CriLJ3091 (supra), the Supreme Court referred to a decision in Umesh Chandra v. State of Rajasthan : [1982]3SCR583 , wherein it was held as follows:
As regards the general applicability of the Act, we are clearly of the view that the relevant date for the applicability of the Act is the date on which the offence takes place. Children Act was enacted to protect young children from the consequences of their criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of an adult This being the intendment of the Act, a clear finding has to be recorded that the relevant date for applicability of the Act is the date on which the offence takes place. It is quite possible that by the time the case comes up for trial, growing in age being an involuntary factor, the child may have ceased to be a child. Therefore, Sections 3 and 26 became necessary. Both the sections clearly point in the direction of the relevant date for the applicability of the Act as the date of occurrence. We are clearly of the view that the relevant date for applicability of the Act so far as age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial.
The Hon'ble Supreme Court further observed that the law laid down in Umesh Chandra's case : [1982]3SCR583 (supra) is the correct law and that the decision rendered by a two-Judge Bench of this Court in Arnit Das v. State of Bihar : 2000CriLJ2971 cannot be said to have laid down a good law.
25. The Hon'ble Supreme Court held that the relevant date for the applicability of the Act is the date on which the offence took place. In this case, the alleged offence took place on 22-03-2000, therefore, the Accused No. 2 must be 14 years 9 months 14 days as on the date of offence. He was aged about 15 years 9 months and 23 days as on 01-04-2001 when the 2000 Act came into force. Under the 1986 Act a juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the 2000 Act, no distinction has been drawn between the male and female juvenile. The limit of 16 years in 1986 Act has been raised to 18 years in 2000 Act.
26. The Hon'ble Supreme Court in Pratap Singh's case : 2005CriLJ3091 (supra) held that the 2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 1-4-2001. Section 20 of the 2000 Act reads as follows:
20. Special provision in respect of pending cases:-- 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 Board 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 a juvenile has committed the offence.
Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.
Explanation:-- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of Clause (1) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.
27. Therefore, A-2 has to be dealt in accordance with Section 20 referred above in this Revision.
28. However, the learned Magistrate pronounced the Judgment on 25-01-2001. As on that date, the 1986 Act was in force. Therefore, we have to consider the provisions of 1986 Act to decide whether the trial Court or the appellate Court followed the procedure applicable to the juveniles during the relevant period.
29. Section 23 of the 1986 Act is as follows:
23. Proceeding under Chapter VIII of the Code of Criminal Procedure not competent against juvenile:Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), no proceeding shall be instituted and no order shall be passed against a juvenile under Chapter VIII of the said Code.
Section 24 of the 1986 Act is as follows:
24. No joint trial of juvenile and person not a juvenile:
(1) Notwithstanding anything contained in Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974), or in 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.
(2) If a juvenile is accused of an offence for which under Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in Sub-section (1), have been charged and tried together, the Court taking cognizance of that offence shall direct separate trials of the juvenile and the other person.
Section 32 of the 1986 Act reads as follows:
32. Presumption and determination of age.-(1) Where it appears to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile, and the age recorded by the competent authority to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person.
Section 3 of the 1986 Act reads as follows:
3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile.- Where an inquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child 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 or a child.
Thus it is clear that even under the provisions of 1986 Act, regular Criminal Courts are prohibited from dealing with juveniles. Joint trial of juvenile along with a person who is not a juvenile is also prohibited. The Court, before whom a juvenile and a person, who is not a juvenile, who are charged together, are brought, shall direct separate trials of the juvenile and the other accused and the juvenile shall be forwarded to the juvenile Court having jurisdiction over the area.
30. What the Magistrate should do when an accused appears to be juvenile is brought before him was considered in the Judgment in Gopinath Ghosh v. State of W.B. : 1984CriLJ168 , wherein the Supreme Court, while dealing with the provisions of West Bengal Children Act, observed as follows:
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 credit-worthy evidence about the 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 gross-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.
The Hon'ble Supreme Court further observed that:
It clearly transpires from a combined reading of the sections hereinbefore extracted that where a juvenile delinquent is arrested, he/she has to be produced before a juvenile Court and if no juvenile Court is established for the area, amongst other, the Court of Sessions will have powers of a juvenile Court.
31. Section 27 of the Code of Criminal Procedure, 1973, reads as follows:
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 especially 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.
Therefore, it was obligatory on the part of the learned Magistrate to refer the case to a juvenile Court for dealing with the matter under the provisions of the Juvenile Justice Act, 1986.
32. Section 5 of the 1986 Act deals with the constitution of Juvenile Court. Section 8 of the Act deals with the procedure to be followed by a Magistrate not empowered to exercise the powers of a board or juvenile Court, which reads as follows:
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 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 proceedings.
(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.
33. The Hon'ble Supreme Court in Bhola Bhagat v. State of Bihar : 1998CriLJ390 , observed as follows:
When a plea is raised on behalf of an accused that he was a 'child' within the meaning of the definition of the expression under the Act, it becomes obligatory for the Court, in case it entertains any doubt about the age as claimed by the accused, to hold an inquiry itself for determination of the question of age of the accused or cause an enquiry to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially oriented legislation, it is an obligation of the Court where such a plea is raised to examine that plea with care and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions to an accused. The Court must hold an enquiry and return a finding regarding the age, one way or the other.
Thus the Supreme Court has categorically held that it is obligatory on the part of the trial Court to determine whether the accused is a child or not before proceeding with the case.
The Hon'ble Supreme Court further held that:
We expect the High Courts and subordinate Courts to deal with such cases with more sensitivity, as otherwise the object of the Acts would be frustrated and the effort of the Legislature to reform the delinquent child and reclaim him as a useful member of the society would be frustrated.' It was further observed as follows:The High Courts may issue administrative directions to the subordinate courts that whenever such a plea is raised before them and they entertain any reasonable doubt about the correctness of the plea, they must as a rule, conduct an inquiry by giving opportunity to the parties to establish their respective claims and return a finding regarding the age of the concerned accused and then deal with the case in the manner provided by law.
34. As and when a juvenile delinquent is shown as an Accused and produced before a Magistrate and his age is shown by the police as 18 or 19 years, then the Magistrate should observe the accused and try to ascertain his age and form an opinion regarding his age, as he would have the opportunity to see and observe the accused or juvenile delinquent. If necessary he must send the accused for examination by the medical board and ascertain his age. It may result in doing great injustice or defeating the provisions of the legislation if the Magistrate does not exercise his discretion and power at the stage when the accused is produced before him. The Magistrate need not accept the age mentioned by the Investigating Officer as gospel truth. As and when the accused takes a plea that he is a child or it appears to the Magistrate that the accused may be a child, he must make an enquiry and ascertain the age of the accused. If such accused is mixed with the ordinary adult criminals, it will defeat the provisions of the Beneficial Legislation and also cause bad effect on such juvenile delinquent.
35. The Hon'ble Supreme Court in Bhola Bhagat's case 1998 CRI.L.J. 390 (supra) had an occasion to deal with the case in which children have crossed the age of 18 years and held that:
To us it appears that the approach of the High Court in dealing with the question of age of the appellants and the denial of benefit to them of the provisions of both the Acts was not proper. Technicalities were allowed to defeat the benefits of a socially oriented legislation like the Bihar Children Act, 1982 and the Juvenile Justice Act, 1986. If the High Court had doubts about the correctness of their age as given by the appellants and also as estimated by the trial Court, it ought to have ordered an enquiry to determine their ages. It should not have brushed aside their plea without such an enquiry.
36. Section 18 of the 1986 Act reads as follows:
18. BAIL AND CUSTODY OF JUVENILES. (1) When any person accused of a bailable or non-bailable offence and apparently a juvenile is arrested or detained or appears or is brought before a Juvenile Court, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release is 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.
(2) When such person having been arrested is not released on bail under Sub-section (1) by the officer-in-charge of the police station, such officer shall cause him to be kept in an observation home or a place of safety in the prescribed manner (but not in a police station or jail) until he can be brought before a Juvenile Court.
(3) When such person is not released on bail under Sub-section (1) by the Juvenile Court it shall, instead of committing him to prison, 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.
37. Where a person is not released on bail, he may be sent to observation home. What orders that may be passed regarding the delinquent juveniles have been enumerated under Section 21 of the 1986 Act. Orders that may not be passed against the delinquent juveniles have been envisaged under Section 22 of the 1986 Act. Even if a juvenile has committed murder or rape, in view of Section 22 neither he can be sentenced to death nor to imprisonment. In view of the scheme and the procedure to be followed under the Act, the juvenile cannot be tried by a regular Court, therefore, the trial against A-2 is vitiated since he must be treated as a juvenile.
38. The Supreme Court held that even where an inquiry has been initiated and the juvenile ceases to be a juvenile i.e. crosses the age of 18 years, the inquiry must be continued and orders made in respect of such person as if such person had continued to be a juvenile.
The Supreme Court further held that:
In terms of the 1986 Act, a person who was not juvenile could be tried in any court. Section 20 of the Act of 2000 takes care of such a situation stating that despite the same the trial shall continue in that court as if that Act has not been passed and in the event, he is found to be guilty of commission of an offence, a finding to that effect shall be recorded in the judgment of conviction, if any, but instead of passing any sentence in relation to the juvenile, he would be forwarded to the Board which shall pass orders in accordance with the provisions of the Act as if he has been satisfied on inquiry that a juvenile has committed the offence.
Referring to Section 64 of the 2000 Act, the Supreme Court held that:Under Section 64 where a juvenile is undergoing a sentence of imprisonment at the commencement of the 2000 Act he would, in lieu of undergoing such sentence, be sent to a special home or be kept in a fit institution. These provisions show that even in cases where a mere inquiry has commenced or even where a juvenile has been sentenced the provisions of the 2000 Act would apply. Therefore, Section 20 is to be appreciated in the context of the aforesaid provisions.
39. While referring to the entry in the register of births and deaths, the Hon'ble Supreme Court in the case between Santenu Mitra v. State of West Bengal : AIR1999SC1587 , observed as follows:
Once that entry was recorded by an official in performance of his duties, it cannot be doubted on the mere argument that it was not contemporaneous with the date f the suggested date of birth of the appellant. It cannot be forgotten that the occurrence took place much later, say 10 years. It could not have been expected on the date when the entry was made that the appellant would claim benefit thereof on the commission of some offence.
Therefore, the orders have to be passed treating A-2 as juvenile as on the date of offence under Section 3 of the Act. The benefit of the provisions of the Act should not, therefore, be denied to a juvenile offender who was the juvenile by the date of offence, within the meaning of the Act.
40. Having regarding to the fact that A-2 was a juvenile on the date of offence and that no enquiry was conducted by the learned Magistrate and that there is nothing on record to suspect the S.S. Certificate and other documents filed by A-2 at the appellate stage, I am of the view that the Appellate Court committed irregularity in not holding enquiry to determine the age of A-2 and declare him as juvenile as on the date of offence. Similarly, when suggestions were given to the witnesses that A-2 was a juvenile before the trial Court, the learned Magistrate ought to have enquired into the matter to ascertain the age of A-2 before continuing the proceedings against him.
41. Now let us consider the prosecution case in respect of A-1 and A-3. The specific case of the prosecution is that on 22-03-2000 at about 7-30 PM, while PWs.1 and 2 were in front of the house of PW-1, the accused came there with iron rods and that A-1 claimed that he is having right in the rastha (way) and on that, an altercation took place, in which A-1 dealt a blow with iron rod towards right side of the head of PW-2 and that A-2 dealt a blow with an iron rod on the left knee of PW-1. When PW-2 intervened, A-2 dealt a blow with iron rod on her head and right fore arm. When PW-3 intervened, A-3 dealt a blow with stick above the right eye of PW-3.
42. PWs.1 to 3 are the injured witnesses. PW-4 is the eyewitness and his evidence is corroborating with the evidence of PWs.1 to 3. The evidence of PW-4 also shows that there is scuffle between the two groups. The alleged incident occurred at about 7-30 PM on 22-03-2000 and the report was given at the police Station at about 8-00 PM on the same day. The police station is at a distance of 2 KMs from the scene of offence. The injured was examined by the doctor at about 10 PM on the same day and on the next day, the X-ray was taken. Therefore, there is no delay in giving the report to the police. The evidence of PWs.1 to 3 is also corroborated by the medical evidence.
43. PW-7, the doctor, who examined PWs.1 to 3, noted the following injuries on PW-1:
1. A curved incised wound about 3' x 1/2' over right pirital region.
2. A small abrasion below the left knee joint size of 2' x 1'.
He opined that the above injuries are simple in nature.
The doctor examined PW-2 and noted the following injuries:
1. An incised wound of 2' x 1/2' on the right temparal region. A contusion of two cm radius around the injury.
2. Contusion over the middle of right forearm around the size of 5' x 3' small abrasion over swelling seen.
3. Abrasion over right knee around the size of 1/2' x 1/4'.
4. Abrasion over left knee about the size of 3' x 2'.
He opined that the injury No. 2 sustained by PW-2 is grievous in nature.
The doctor also examined PW-3 and found the following injuries:
1. An incised wound over the right side of forehead just above the right supra orbital margion around the size of 3' x 1/2' bone deed.
He opined that the above injury is simple in nature. Exs.P-5, P-7 and P-8 are the wound certificates issued by the doctor in respect of PWs.1 to3.
44. PW-5 is the Radiologist working in Government Hospital, Kadapa. He has taken the X-ray of PW-2, which was marked under Ex.P-2. Ex.P-3 is the opinion, wherein he opined that the X-ray under Ex.P-2 reveals fracture of radious.
45. PW-6, the investigating Officer, visited the scene of offence, examined PW-4 and others and recorded their statements. On 24-03-2001, he arrested A-1, A-3, A-5 and A-6 and sent them for judicial custody. His successor, G.V. Sivaiah, Sub-Inspector of Police, arrested A-2 and A-4 and after completion of the investigation, he laid the charge sheet.
46. As discussed above, the oral evidence of PWs.1 to 3 has been corroborated with the medical evidence. According to PW-2, A-2 beat her with an iron rod on her right forearm and she sustained fracture. A-2 again beat on her head and she sustained a bleeding injury. The evidence of PW-2, as far as the injuries caused by A-2, is corroborated with the medical evidence. According to PW-3, A- 3 beat her with a stick above his right eye and she sustained bleeding injury. The evidence of PW-3 is also corroborated by the evidence of PWs.1 and 2 and the medical evidence of PW-7. PW-4 also corroborated with the evidence of PWs.1 to 3 and therefore, the evidence of the prosecution witnesses is consistent and appears to be trustworthy.
47. It is settled law that merely because there are disputes between the parties or that the prosecution witnesses are on inimical terms with the accused, their evidence need not be discarded. There will be minor contradictions and omissions in the evidence of the natural witnesses and therefore, no importance need be given to such minor contradictions and omissions.
48. As far as A-1 and A-3 are concerned, the offence under Section 324 of IPC has been proved against them. Since the alleged offence took place on 22-03- 2000 i.e., about 9 years ago and since there is nothing on record to show that they are involved in any other case and as they were aged about 45 years in the year 2000, by now they may be aged about 55 and 65 years, I am inclined to take a lenient view by modifying the sentence imposed by the Courts below.
49. Since A-2 was tried along with the persons, who are not juveniles, in normal course we would have held that the trial is vitiated against A-2 and forwarded the case to the juvenile court for dealing with the case against him as per the provisions of the Juvenile Justice Act. However, we have to take into consideration the submission made by the learned Counsel that the offence took place in the year 1999 and that A-2 has become major and in the above circumstances, no purpose would be served by forwarding the matter to the Juvenile Court because the juvenile Court cannot send A-2 to the juvenile home at this stage.
50. Section 7(3) of the 1986 Act is as follows:
7 (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 comes before them in appeal, revision, or otherwise.
51. It appears that there is sufficient force in the contention of the learned Counsel for the petitioners. The petitioner has become a major by this date. Therefore, no useful purpose will be served by forwarding the matter to the juvenile Court. We have already reappraised the entire evidence in this case. On careful examination of the evidence, it appears that the finding reached by the courts below holding that A-2 is guilty of the offences under Sections 324 and 326 of IPC and convicting him for the same appears to be based on record. Therefore, the conviction of A-2 for the said offences is upheld. However, in Sankar Patra v. State of West Bengal 2005 (TLS) 508525 : 2005-Calhn-3-303, the Calcutta High Court, in a similar case, observed that:
If the certificate is believed the accused appellant was below 16 years on the date of incident. Learned Judge made error by not giving importance to the said certificate and not calling any teacher or responsible person from Badebalia Primary school to prove the contents of the certificate and to ascertain its genuineness. It is strange how after such evidence of D. W. 1 and production of school certificate marked 'x' for identification learned trial Judge did not take any step for ossification test of the accused to ascertain his age according to medical science. It is settled law that the age mentioned in the school certificate cannot be brushed aside unless there is any contrary convincing evidence to rebut the presumption of age mentioned in school certificate. Even if that certificate is considered as genuine the age of the appellant is now more than 20 years.
(19) THE position relating to question of minority can be gathered from galaxy of decisions placed before the Court. In Umesh Singh and Anr. v. State of Bihar (supra) the Hon'ble Supreme Court observed that as the appellant was below 18 years of age at the relevant time it was not possible to sustain the sentence and accordingly the Hon'ble Supreme Court while maintaining the conviction of the appellant set aside the sentence. In Bhoom Ram v. State of U. P. (supra) the Hon'ble Supreme Court found that the appellant who was to be governed by the U.P. Children Act and presently reaching more than 28 years of age there was no point referring back to the borstal school and while maintaining the conviction, quashed the sentence and directed release of the appellant. In Bhola Bhagat and Ors. v. State of Bihar (supra) and Pradeep kumar and Ors. v. State of U. P. (supra) their Lordships held in similar manner.
The Calcutta High Court further held that:
THE appellant who is now definitely above 20 years of age cannot be sent to any borstal school under the provisions of West Bengal Children act and Juvenile Justice Act. Accordingly, the conviction of the appellant is maintained but his sentence is quashed and the appellant is directed to be released forthwith.
52. In the result, the Criminal Revision Case is allowed in part. The conviction against A-1 and A-3 for the offence under Section 324 of IPC is confirmed. However, the sentence is modified by imposing a fine of Rs. 2,000/- each, in default to suffer simple imprisonment for two months. Out of the fine amount paid by A-1, PW-1 shall be paid an amount of Rs. 1,000/- towards compensation and the remaining amount shall be confiscated to the State. Out of the fine amount paid by A-3, PWs.2 and 3 shall be paid Rs. 1,000/- each. The trial Court to take steps to pay the fine amount to PWs.1 to 3 within two months from the date of receipt of copy of this Judgment.
53. So far as A-2 is concerned, as he is a juvenile on the date of offence, no sentence can be sustained against him. No purpose would be served by directing the Juvenile court to deal with A-2 at this stage since by now he would have definitely above 25 years of age and therefore, he cannot be sent to any borstal school under the provisions of the Juvenile Justice Act. Therefore, though the conviction against A-2 is upheld, no sentence is passed against him in the circumstances of the case.