PUSHPENDRA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This application for bail was filed in this Court under section 439 Cr. P.C. The circumstances leading to this bail application are in F.I.R. No. 108/1987 relating to the famous Divrala matter. The accused-petitioner is the real brother of deceased Mal Singh husband of Roop Kanwar, who is said to have committed Sati or was burnt at with. He was arrested along with other persons. Because the age of the accused petitioner Pushpendra Singh was less than 16 years and he is a child within the meaning of section 2(d) of Rajasthan Children Act, 1970 (for short. the Act) an application before the Children Court (Chief Judicial Magistrate, Sikar) was filed under section 18 of the Act for ball was filed. That application was opposed on behalf of the State and the learned Children Court under its order dated September 14. 1987 while refusing bail to the accused petitioner ordered that the petitioner be sent to observation home during the investigation of the case. An appeal against the aforesaid order was filed under section 37 of the Act. The learned Sessions Judge, Sikar under his order dated September 18, 1987 dismissed the appeal. The petitioner filed this application under section 439 Cr. P.C.

(2.) A preliminary objection was raised by Mr. Khan, learned Additional Advocate General that an application under section 439 Cr. P.C. is not maintainable as under the aforesaid Act a revision lies to this Court. He further contends that all the State Acts have been repealed and now Juvenile Justice Act. 1986 (for short, the Juvenile Act) has come into force on October 2. 1987. Even under the Juvenile Act a revision lies to this Court under section 38. Thus, the contention of Mr. Khan is that revision lies to this court and an application under section 439 Cr. P.C. does not lie.

(3.) It may be stated that this objection was taken by the learned Additional Advocate General on the last date and an application was filed by the learned counsel for the petitioner that his application under section 439 Cr. P.C. may be treated as a revision petition. That application is also to be disposed of. It may be stated that if the application under section 439 Cr. P.C. is treated as a revision petition there is no dispute that it shall still be within limitation. It is within limitation not only on the date of its presentation, but even today it is in limitation.