PARBATI LAL SHARMA Vs. SADHAN RAMPURIA

JUDGEMENT

(1.) Opposite party No. 1 surrendered before the Sub-Divisional Magistrate, Howrah, as an accused in a case under Section 302/ 34 of the Indian Penal Code. He claimed to be a 'child' within the meaning of the West Bengal Children Act, 1959, and the Sub-Divisional Magistrate acting under Section 6 of the Act forwarded him to the Juvenile Court having jurisdiction. The opposite party No. 1 was then produced before the Juvenile Court and the Juvenile Court made an enquiry as to his age under Section 40 of the Act and made a finding that the age of the opposite party No. 1 at the date of the alleged incident was 16 years 10 months and, as such, he was a 'child' within the meaning of the Act. The Petitioner, on whose first information report the Police had started the instant case under Section 302/ 34 of the Indian Penal Code, has thereafter obtained this Rule against this finding of the Juvenile Court.

(2.) Mr. Dutt, who appears for the opposite party No. 1 before me, raises a preliminary objection that no revisional application lies against the instant finding of the Juvenile Court in view of Section 48 of the Act. Under Section 48 of the Act an appeal lies from an order made by a Juvenile Court either to the Sessions Judge or to the High Court. The question that arises for consideration is, if a finding recorded by the Juvenile Court under Section 40 of the Act, can be said to be an order within the meaning of Section 48 of the Act. Mr. Dutt submits that the finding about age recorded by the Juvenile Court under Section 40 of the Act is in fact an order determining the age of the accused brought before the Court. True, the Court determines the age of the accused brought before him, but Section 40 does not speak of an 'order' to be made by the Magistrate. On the other hand, Section 40 speaks of a 'finding' to be recorded by the Magistrate. When we look to other provisions of the Act we find that the word 'order' has been used in Sections 26, 31(3), 32, 34 and so on. So the question whether the finding made by the Juvenile Court under Section 40 of the Act is an 'order' within the meaning of Section 48 of the Act will be an important question for determination in an appropriate case, but in the facts of this case I do not feel called upon to make a final decision on this point.

(3.) Let me assume that a revisional application does lie. But, even then there is no substance in this application. Mr. Banerjee contends that a Juvenile Court is to make a determination of the age of the accused brought before it under Section 40 only when a challan or a charge-sheet is submitted and the Juvenile Court takes cognizance of the alleged offence- Here in this case, as I have pointed out, no challan or charge-sheet has as yet been submitted and the Juvenile Court has not as yet taken cognizance of the alleged offence, but the opposite party No. 1 is an accused in a case which is pending investigation before the Police and he surrendered before the Sub-Divisional Magistrate, Howrah, who sent him to the Juvenile Court as a child. Mr. Banerjee's contention is that so long as investigation is pending the Juvenile Court is not called upon to make a finding under Section 40 of the Act. I am unable to accept this contention. Section 40 speaks as follows: