TAPAS KUMAR GHOSH METROPOLITAN MAGISTRATE CALCUTTA Vs. STATE

JUDGEMENT

(1.) THESE two reference have been made by the Metropolitan Magistrate -in- Charge of the Juvenile court, Calcutta under section 395 (2) of the Code of Criminal Procedure seeking answer to the question as to whether a District Judge can make an order as to guardianship of the person of a minor in exercise of his power under the Guardians and Wards Act, 1890 (hereinafter referred to as the (Central Act') whose case is being dealt with by the Juvenile Court under Chapter IV of the West Bengal Children act, 1959 (hereinafter referred to as the 'state Act' ). Facts relating to these references are as under.

(2.) FROM time to time 'neglected children' are produced before the juvenile Court constituted under the State Act by police officers and prayers are made for dealing with them in accordance with Chapter iv of the State Act. On such production the Juvenile Court enquires into the matter and passes orders for their suitable custody in terms of the provisions of the said Chapter. In some of those cases the learned District Judge, 24 Parganas has also passed orders regarding custody of the self same children in exercise of his powers under the Central Act without making any reference to the Juvenile Court and without taking into consideration its earlier orders and thereby stultified the orders passed by the Juvenile Court. Specific instances of such orders passed by the learned District Judge have been mentioned in the references.

(3.) SECTION 7 of the Central Act empowers the District Judge to appoint guardian in respect of, inter alia, the person of a minor and pending such appointment, to pass orders for temporary custody and protection of such minor. Similarly, Chapter IV of the State Act, which is a self contained Act, entiles the Juvenile Court to pass orders for suitable custody of 'neglected child' produced before it. A plain reading of the definition of "minor"- in the Central Act and that of "neglected child" in the State Act would make it abundantly clear that the latter can be construted as a species of the former. In view of the above provisions of the two Acts the powers of the Courts overlap while dealing with neglected children and in such a situation we have to take recourse to the provisions of Article 254 of the constitution of India. Sub-clause (2) thereof provides that where a law made by a legislature of a State with respect to one of the matters enumerated in the concurrent list contains provisions repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter then the law so made by the legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. The repugnancy between law referred to in the above Article may arise when there is direct conflict between the two, where one cannot be obeyed without disobeying the other or where both occupy the same field.