@JUDGMENTTAG-ORDER
S.L. Kochar, J.@mdashThe State has filed this revision against the order dated 24-9-2001 passed by the Sessions Judge, Jhabua in Sessions Trial No. 158/2001 returning the charge-sheet to the Public Prosecutor for filing the same before the Juvenile Court, Jhabua and discharged the non-applicants from his Court.
2. Learned Dy. Advocate General Shri Desai has assailed the impugned order on the ground that the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act of 2000) came into force from 1-4-2001 whereas the incident had taken place on 14-2-2001. Therefore, the present case can not be dealt with under the old Act ie., The Juvenile Justice Act, 1986 (hereinafter referred to as the Act of 1986). He also submitted that the accused/non-applicants have not filed any positive material to establish that they were below 18 years of age on the date of the incident.
3. In counter to this, Shri Jaisingh appearing for the non-applicants submitted that according to the ossification test, the non-applicants were found below 18 years of age. Therefore, the learned Sessions Judge has rightly returned the charge-sheet for filing the same before the Juvenile Court/Competent Authority, Jhabua because as per the prosecution itself, the non-applicants were shown to be below 16 years of age. Therefore, even according to the Act of 1986, the regular Trial Court could not take cognizance for trying them being juveniles under the Act of 1986.
According to Section 20 special provision in respect of pending cases in Act, 2000 the pending case shall continue before the same Court where they arc being tried, but if the trying Court find that the juvenile has committed the offence, it shall record such finding and instead of passing any sentence, in respect of juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. This stage has not come. Mainly the charge-sheet was filed for the offences under Sections 307, 152, 506 and 148 read with Section 14 of the Indian Penal Code before the Judicial Magistrate First Class, Thandla from where the same was committed to the Sessions Court at Jhabua, where it was registered as Sessions Trial No. 158/01, The Sessions Jhabua, on the date of hearing arguments on charge, perused the record and found that the prosecution has got radiologically examined all the non-applicants and according to the Ossification Test, Kaloo was found below 16 years of age and the remaining between 16 and 18 years.
4. It is submitted by the counsel for respondent that the charge-sheet was filed on 14-5-2001. Therefore, the present case will be governed by the Act of 2000 which had come into force on 1-4-2001 and Section 20 of the Act will have no application, because on the date of enforcement of the Act i.e., from 1-4-2001, the case against the non-applicants was not pending before any Court of that area.
5. In view of the enforcement of the Act of 2000, the juvenile has been defined in Section 2 Sub-section (k) as under:--
" "juvenile" or "child" means a person who has not completed eighteenth year of age:"
In the present case, the non-applicants had not completed 18 years of age on the date of filing of the charge-sheet i.e., 14-5-2001 and on this date, the new Act of 2000 had already come into force. Section 20 of the Act would not apply because, on the date of enforcement of the new Act of 2000 the case was not pending before any Court. Therefore, this case will be governed by the Act of 2000.
6. The Sessions Judge has rightly returned the charge-sheet for filing it before the Juvenile Court/Competent Authority. When the Juvenile Court/ Competent Authority will receive the charge-sheet and the non-applicants will be produced by the police before it, the Juvenile Court/Competent Authority shall make due enquiry so as to the age of the non-applicants and for that purpose, shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or not, state his age as nearly as may be. Section 49 of the Act of 2000 is almost equivalent to Section 32 of the Act of 1986. Under the provisions of Section 49 of the Act of 2000, the authority has been prohibited to decide the age on the basis of affidavit.
7. The Apex Court had an occasion to interpret Section 32 of the Act of 1986 in the case of
8. In view of the aforesaid analysis of the Act of 1986 and Act of 2000 as well as the Supreme Court judgment (supra), the Competent Authority/ Juvenile Court is required to determine the age after due inquiry as per the provisions of Section 49 of the Act of 2000 without being in any way influenced by the finding about the age given by the Sessions Court, Jhabua.
9. With the aforesaid modification, the order passed by the Sessions Judge returning the charge-sheet to the concerned Police/Prosecution to file the same before the Juvenile Court/Competent Authority, is hereby upheld.
