SURJIF SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) This is a petition for revision of an order dated 24-8-1982 passed by the Judicial Magistrate 1st Class, Karnal whereby out of the five persons accused of offences under sections 307/452/148/149, Indian Penal Code, produced before him, he committed three accused to the Court of Session and dealt with the remaining two accused in the following manner: As a result, I hold that the accused Balvinder Singh and accused Amarjit Singh are less than 16 years of age. They are required to be tried by the Children Court. The prosecution is required to file separate challan. To come up on 4-9-1982 for filing separate challan. Sd!Judicial Magistrate 1st Class, KarnalDated: 24-8-1982

(2.) The petitioner is the complainant. He has approached this Court primarily on the ground that the Judicial Magistrate 1st Class could not record such finding, holding the aforesaid two accused to be minors is the Court was not empowered to do so within the provisions of the Haryana Children Act, 1974 (hereinafter referred to as the Act). A doubt had arisen in my mind whether any Children Court had been set up under section 4 of the Act. On query from the Director, Social Welfare Board, Haryana, at my askance, it has been intimated that Children Court has not yet been set up thus, it is obvious that the learned Magistrate has acted not as a Children Court itself but has rather referred the accused to a Court termed as Children Court. It is on this aspect of the case that the learned counsel for the petitioner is emphatic that when there is no Children Court, the question of sending of the two aforesaid accused to that Court did not arise. In the situation, it is vehemently contended that the Magistrate was bound under section 209 of the Code of Criminal Procedure to commit the accused to the Court of Session along with the other co-accused.

(3.) It would be seen from the broad line of the Act that the State Government is empowered to constitute Child Welfare Boards under Section 3, and Childrens Court under Section 4 of the Act. Sub-section (4) of Section 6 of the Act provides: Where no childrens court has been constituted for any area, the powers conferred on it, by or under this Act, shall be exercised in that area by the judicial magistrate of the 1st class specially nominated by the Sessions Judge. On the other hand, Section 7 of the Act provides procedure to be followed by a Magistrate not empowered under the Act and vice-versa. It would be worthwhile to quote it here: 17(1) When any magistrate not empowered to exercise the power of a Board or a childrenTs court under this Act is of the opinion that a person brought before him otherwise than for the purpose of giving evidence, is a child, he shall record such opinion and forward the child and the record of the proceedings to the competent authority having jurisdiction over the proceeding. (2). The competent authority to which the record of proceedings is forwarded under sub-section (1) shall hold the enquiry as if the child had originally been brought before it. (3) When any childrens court is of the opinion that a person brought before it is not a child, he shall record such opinion and forward the person and the record of the proceedings to the Court having jurisdiction over the proceedings. (4) The court to which the record of proceedings is forwarded under sub-section (3) shall hold the enquiry or trial, as the case may be, as if the person had originally been brought before it.