Anoop Singh Vs. Cheloo and anr.

- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - i have gone through the judgment of both the lower courts as well as the record of the case and the explanation of the learned magistrate......at the instance of the parties who are unable to bring the witnesses to court. true section 145 (4), cr. p. c. does not say so, but under section 145 (9), cr. p. c, the magistrate has been given a discretion at any stage of the proceedings under section 145, cr. p. c. on the application of either party to issue a summons to any witness directing him to attend or to produce any document or thing.such summones were issued to ganesh singh and roop singh, but they did not appear. under section 90 of the code of criminal procedure, therefore, the magistrate could issue a warrant for the arrest of these two witnesses after recording his reasons in writing. learned magistrate is, therefore, wrong in saying that he had no power under section 145. cr. p. c. to issue warrants against these two witnesses of course, it was at the discretion of the learned magistrate to issue a warrant or not but the discretion ought to have been judicially and not arbitrarily exercised. learned magistrate ought to have seen if these two witnesses were necessary in the case and if they were not present in pursuance of the summonses, he should not have hesitated to issue warrants against them.3. as the applicant says that these two witnesses were necessary for proving his possession, certainly a prejudice was caused to the applicant by the non-examination of these witnesses.4. reference is accepted. the order of thelearned sub divisional magistrate dated 22-6-1956,declaring party no. 1 to be entitled to possessionof the land in dispute is set aside and the case issent back to him for decision after recording thestatements of these two witnesses either by issuingsummonses or by issuing warrants whichever isconsidered proper in the circumstances of thecase.