KAMIL Vs. STATE OF U P

JUDGEMENT

(1.) J. P. Semwal, J. This revision is directed against the order dated 12. 6. 1991, passed by the 1st Additional District and Sessions Judge, rejecting the application (88-kha) of the accused-applicant.

(2.) THE accused applicant and one Raju moved an application (88-kha), on 12. 6. 1991, before the lower court praying that their trial be separated from other co-accused and be transferred to the Juvenile Court in accordance with law. It was also prayed that suitable orders be passed for holding an enquiry by the Chief Judicial Megistrate or by the said court itself as contemplated under section 5. read with section 20/32 of the Juvenile Justice Act. Affidavit and papers in support of proof in regard to age, were also filed. Authorities were cited on behalf of the revisionist before the lower court. THE lower court considered the authorities cited on behalf of the revisionist and came to the conclusion that there was no question of separating the case or holding an enquiry, because when in defence the accused give their evidence in support of their see, then it would be decided at the time of final sentence. In the opinion of the lower court, the applicants do not get any benefit of the rulings at this stage. THE crime was committed before Juvenile Act came into force and, therefore, the lower court held that Children Act, would be applicable. Section 63 of the U. P. Children Act, 1951, provides joint trial of the child and the adult and that the sentence, if any, awarded to the child shall be in accor dance with the provisions of this Act. In the result, the application (88-Kha), was rejected.

(3.) LEARNED counsel referred to the provisions of Juvenile Justice Act, 1986, Children Act I960, and U. P. Children Act, 1951. It was conceded before me that Juvenile Justice Act, 1986, came into force subsequent to the occurrence in the present case. According to the averments made in para 3 of the aflidavit of Bundu Khan the alleged offence was committed on 9. 3. 1986, and the date of birth of the revisionist Kamil is 1-7-1971. It was, thus, argued by the learned counsel for the revisionist that the revisionist was below 16 years of age at the time of the occurrence. His contention was that the provisions of the Juvenile Justice Act would be applicable and section 24 of the said Act bars joint trial of juvenile and a person not a juvenile. He further argued that enquiry in accordance with the provisions of section 39 has to be held by the Juvenile court under section 20 of the Act. He also referred to section 32 of the Act, regarding presumption and determination of the age of juvenile. Aware of the fact that occurrence had taken place and proceedings were started before the Juvenile Justice Act came into force, the learned counsel for the revisionist urged that even if the provisions of the Juvenile Justice Act were not applicable, the provisions of Children Act, 1960, having identical provisions, would apply. The State Counsel refuted this contention and urged that the Children Act, Ib60 extended to Union Territories only. This contention has force in view of the Preamble and Section 1 of the said Act.