A. Pasayat, J.
1. Appellant calls in question legality of his conviction for an offence punishable under Section 436 of the Indian Penal Code, 1360 (in short, 'IPC'), and sentences of rigorous imprisonment for three years and fine of Rs. 2,000/-, in default sentence of six months' rigorous imprisonment, as imposed by the learned Sessions Judge, Keonjhar. Though attempt was made to attach vulnerability to correctness of the conclusions, ultimately it was conceded that learned Sessions Judge, Keonjhar has elaborately dealt with the evidence on record and has come to correct conclusion about guilt of the accused appellant. But a new point regarding applicability of Juvenile Justice Act, 1986 (in short, the 'Act') was raised. It was urged that the appellant was a juvenile as defined in Clause (h) of Section 2 of the Act, and the learned Sessions Judge. Keonjhar was not justified in imposing the sentence. Though it is fairly conceded that the Act had not come into force when the offence was . committed and the matter was disposed of by the learned Sessions . Judge yet it is stated that in appeal also that question can be considered. The learned counsel for State submitted that the question of -age being a factual dispute, that question should not be gone into in the present appeal.
2. It is true that a dispute relating to age is a question of fact. From the materials on record it it clear that the accused-appellant had not attained the age of 16. The only question that remains to be considered is whether the provisions of the Act can be made applicable to the facts of this case. At this juncture it is relevant to note that though the Children's Act formulated in the year 1982 in the State of Orissa yet was not brought into operation. This aspect was noticed by the apex Court in Sheela Barse and another v. .Union of India and others : AIR 1986 SC 1773 (para-4). On the other hand, in exercise of powers conferred by Sub-Section (3) of Section 1 of the Act, the Central Government appointed the second day of October, 1987. as the date on which ali the provisions of the 'Act came into force in all the States, in terms of GSR 710(E), dated the 13th August.1987, published in the Gazette of India, Extraordinary, Part II, Section 3(i), dated 13th August, 1987. It is not in dispute that the Act applies to the State of Orissa.
3. Sections 26 and 56 throw light on the controversy at hand. They read as follows :
'26. Special provision in respect of pending cases.-Not withstanding 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.'
'56. Delinquent juvenile undergoing sentence it commencement of the Act.-In any area In which this Act is brought into force, the State Government may direct that a delinquent juvenile who is undergoing any sentence of imprisonment of this Act shall, in lieu of undergoing such sentence, be sent to a special home or be kept in safe custody in such place and manner as the State Government thinks fit for the remainder of the period of the sentence and the provisions of this Act shall apply to the juvenile as if ha had been ordered by a Juvenile Court to be sent to such special home or, as the case may be, ordered to be detained under Sub-section 2) of Section 22.'
4. Section 26 deals with all proceedings in respect of a juvenile pending in any Court in any area on the date on which the Act came into force in that area. The present appeal was filed on 6.12-1985, end therefore, was a pending proceeding when the Act come into force. A legal proceeding becomes pending as soon as it is commenced and continues until it is given a finality, i.e., so long as the Court having original cognizance of it can make an order on matters in issue, or to be dealt with therein. The test is whether any proceedings can be taken into cause before the Court or Tribunal where it is said to be pending. (See Lt. Col. S. K Kashyap and another v. State of Rajasthan : AIR 1971 SC 1120). First part of Section 26 provides that not withstanding anything contained in the Act, ail proceedings in respect of a juvenile pending in any Court on the date when the said Act came into force shall be contained in that Court as if the Act had not been passed, The effect of a non obstante clause is well known. It overrides all other provisions, in the same Act or in any other enactment. The effect of a section having a non obstante clause on the other provisions of the same Act is 'of setting at nought and of obliterating' such other provisions. As such to give full effect to first part of the Act. lt has to be held that provisions of the Act in respect of inquiry into the charges levelled against a juvenile shall be deemed to have been obliterated so far the trials which were pending on the date the Act came into force. Such provisions shall revive and become applicable only after finding regarding guilt of such delinquent juvenile is recorded by the Court which shall also include the High Court. The expression 'Court' in Section 26 of the Act, has to be read to mean Courts other than the Juvenile Courts; otherwise the very purpose of saying that proceedings in respect of a juvenile pending in any Court shall be continued, shall be frustrated.
Section 26 provides that in all pending cases it shall be continued in the Court it is pending as if that Act had not been passed, and it the Court finds that the juvenile has committed an Hence, it small 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 the Act as if it had been satisfied on inquiry under the Act that the juvenile has committed the offence. -Juvenile Court is defined in Clause (i) of Section 2 to mean a Court constituted under Section 5. The State Government by notification in the official gazette is empowered to constitute for any 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 the Act.
5. Section 56 provides that in any area when the Act came into force, the State Government may direct that a delinquent juvenile who is undergoing any sentence of imprisonment of the Act shall, in lieu of undergoing such sentence, be sent to a special home or be kept in safe custody in such place and manner as the State Government thinks fit for the remainder of the period of the sentence; and the provisions of the Act shall apply to the juvenile as if he had been ordered by a Juvenile Court to be sent to such special home or, as the case may be, ordered to be detained under Sub-Section (2) of Section 22.
6. Section 3 of the Act provides for continuation of inquiry in respect of juvenile who has ceased to be a juvenile. It is interesting to note that the Act has not used the word 'trial' but has confined itself only with 'inquiry'. In respect of dispute relating to determination of age, Section 32 makes provision for determination of age by a competent authority. The age of the accused at the time of commission of offence is the relevant age and not his age at the time of trial A combined reading of Sections 3 and 56 makes it clear that benefits of the provisions of the Act are to be extended to an accused who has already been convicted and imprisoned at the time of commencement of the Act. Section 3 clearly provides that when an accused ceased to be a juvenile, an inquiry may be continued and orders may be passed in respect of such person as if he had continued to be a juvenile. The effect of a deeming provision like this is that the Legislature intended to maintain the state of affair to be existent although actually such state of affair did not exist. When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is intended to be resorted to and effect may be given to the statutory fiction, and it must be carried to its logical conclusion. (See State of Bombay v. Pandurana Vinayak : AIR 1953 SC 244). The oft quoted view of Lord Acquith in the case of East End Dwellings Co. Ltd . v. Finsbury Borough Council; (1952) AC 109: (1951) 2 All E. R. 589 that, if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also Imagine as real the consequence and incidents which. if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it, has gained universal acceptance.
7. In view of what has been stated in Section 26 and since the juvenile appellant had committed an offence, he is forwarded to the Juvenile Court which is to pass orders in respect of him in accordance with the provisions of the Act. The appeal is accordingly disposed of.