Patna High Court
Kumar Satyanand vs The State Of Bihar on 21 January, 1983
Equivalent citations: 1983CRILJ1532
ORDER Anand Prasad Sinha, J.
1. This application is directed against the: order dt.,3-9-1981 passed in Session Trial No. 36 of 1981 by the learned Additional Sessions Judge II, Patna, who has rejected the prayer of the petitioner for separating the trial in accordance with the Bihar Children Second Ordinance. 1981 (hereinafter referred to the Ordinance).
2. The petitioner was named as one of the accused along with his father Lallan Prasad and elder brother Kumar Nityanand for the offence under Section 302/34 of the I.P.C. (hereinafter referred to as the Penal Code) on the basis of a first information report lodged with Gardanibagh Police Station giving rise to Gardanibagh P S Case,No. 1(2) 79.
3. Informant Bijoy Kumar Dutta had reported that on 1-2-1979. at about 4 P. M. Kumar Nityanand, who lived in flat-No. 487 situate at Lal Bahadur Shastri Nagar, in the neighbourhood of the informant, had made some gestures towards the informant's sister Kanti Devi, who was on the Balcony of her flat, she had made a protest to her mother and also father, when he had returned from his office. Consequently, the parents of Kanti Devi had gone to the house of the petitioner at 6. 30 P.M. to lodge a protest. Lallan prasad had not by then returned from his office. An altercation took place between the mother of the informant and the mother of the petitioner. At about 11 P. M in the night Lallan prasad. the petitioner and his brother Kumar Nityanand went to the house of the informant and had asked to open the door in an agitated mood, When the door had been opened Rameshwar Dutta, who happened to be the father of the informant, was assaulted and abused. Thereafter, he was thrown from the second floor to the ground. He was taken to the hospital, but he was declared dead.
4. The police after investigation had submitted charge-sheet against the petitioner, his father and his elder brother on 3-4-1979 under Sees. 143, 448 and 302/34 of the Penal Code and a few others.
5. The learned Chief Judicial Magistrate. Patna took cognizance on 18-5-1979 and proceeded with the committal proceeding. On 28-1-1981, the petitioner and other accused person were committed to the Court of Session to stand trial on charges under Sections 143, 448 and 302/34 of the penal Code.
6. On receipt of the commitment order and the records. Session Trial No.86 of 1981 was registered and the case came to the file of the learned Additional Sessions Judge II, patna for disposal and trial. The learned Additional Session Judge issued notice to the accused persons for their appearance on 2-7-1981. It was further extended to 10-7-1981. The accused persons appeared on 10-7-1981 and the case was adjourned to 29-7-1981.
7. An application was filed for separating the trial of this petitioner on the pretext that he happened to be a "child" and that being so. in accordance with the Ordinance, his trial can only be held by the "Children's Court."
8. The matter was contested by the informant and also the State and it appears 'hat the petitioner had been referred to the Civil Surgeon for the estimation of his age.
9. However, the learned Additional Sessions Judge has rejected the prayer on consideration of Section 26 of the Ordinance.
10. It has been contended on behalf of the petitioner that, in any view of the matter, any joint trial of the petitioner by any other court excepting children's court' is not at an legal and valid.
11. The petitioner's case further is that he is a child as defined under the Ordinance and his date of birth happened to the 9th July, 1966. In support of this date of birth, a certificate of the Principal of the Government High School. Shastrimagar. dt. 27-7-1981, a copy of which has been annexed and marked as Annexure 1 to this application, :admit card and the School leaving certificate of Rajkiya Uchha Madhymik Vidyalaya, Lal Bahadur Shashtri Nagar, copies whereof have been annexed and marked as Annexures 'l/A' & '1/2' to this application, had been filed before the learned Addl. Session Judge. While the matter had been referred to the Civil Surgeon, the Civil Surgeon had estimated the age at about 18 years on the date of the examination being 10-8-1981.
12. Child has been defined in Section 2(d) of the Ordinance. It reads as follows,;
"Child" means a boy or a girl who has not attained the age of sixteen years or eighteen years, respectively as the case may be.
13. The relevant certificates and the admit card, stated above, have consistently mentioned the date of birth of the petitioner as 9th July, 1966. The occurrence had taken place on 1-2-1979. That being so. the petitioner was definitely below the age of 16 years on the date of occurrence.
14. Even considering the medical report, the age estimated at 18 years on 10-8-1981 will fix the age of the petitioner on the date of the occurrence at about 151/2 years.
15. That being so, there is no dispute with regard to the fact that the petitioner comes under the category of a 'child' according to the provisions of the Ordinance, on the date of the occurrence.
16. In a case of this type, where the age of an accused is a vital point for application of the social legislation regarding the trial of a child, where the documents like matriculation certificate, school leaving certificate Or the entry made in the different records of the school are available, they should be accepted as reliable and genuine. It is because the entries definitely having been made several years before, cannot be challenged or attacked on the ground that subsequent to the occurrence any record has been created for the advantage of any accused.
17. In addition, the Children's Court should also apply its mind with regard to the age. if there be any dispute and that will be permissible because a court has been authorised to form its own opinion regarding the estimation of age of an accused or a witness involved in a criminal trial. In addition to the age mentioned by any accused in his statement under Section 313 of the Criminal P.C. (hereinafter referred to as the Code) or by a witness while giving his evidence, there is a separate column for recording the age by the court on his own judgment and estimation.
18. Only in case, where such documents like certificate etc., are not available, in case of controversy, the accused be referred to the Civil Surgeon for the estimation of age, but in that case also the court concerned should apply its mind on the question of the estimation of age of the accused.
19. Therefore, in a case in which the age of an accused is under dispute for the application of the social legislation regarding a child involved in any offence. it will always be advisable for the court concerned to come to a definite finding regarding the age after due consideration of documents like certificates etc., or the medical report and over all, the court should fix the age on his own estimation.
20. The next point for consideration is as to whether joint trial of the petitioner was permissible in law. It appears that the learned Additional Sessions Judge was influenced by the wordings of Section 26 of the Ordinance, which runs as follows ;
26. Special provision in respect of pending cases -- Notwithstanding anything contained in this Act all proceedings in respect of a child pending in any court in any area on the date on which this Act comes into force in the area shall be continued in that court as if this Act had not been passed and if the court finds that the child has committed an offence, it shall record such finding and, instead of passing any sentence in respect of the child, forward the child to the children's court which shall pass orders in respect of that child in accordance with the provisions of this Act as if it has been satisfied on inquiry under this Act that the child has committed the offence.
21. Under the circumstances, it is extremely relevant to examine and find out as to whether a joint trial of a child is permissible along with other accused persons, not being child on the basis of the above-quoted Section 26 of the Ordinance.
22. From the preamble portion, it appear that the Ordinance regarding a child involved in any offence has been promulgated as it was thought necessary to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for the trial of delinquent children. 'Delinquent Child' has been defined in Section 2(i) of the Ordinance. It reads as follows :
delinquent child'1 means a child who has been found to have committed an offence.
It will also be relevant to mention the definition of 'children's court', which has been defined in Section 2(e) of the Ordinance. It reads as follows :
children's court" means a court constituted under Section 5." Section 5 of the Ordinance speaks as follows :
5. Children's court! (1) Notwithstanding anything contained in the Cr. P.C. 1973, the State Government may, by notification in the official gazette, constitute for any area specified in the Ordinance, one or more children's courts for exercising the powers and discharging the duties conferred or imposed on such court in relation to delinquent children under the Ordinance.
(2) A children's court shall consist of a bench, of whom one shall be designated as the principal judicial magistrate. Children's court will be assisted by a panel of two qualified honorary social workers, of whom at least one shall be a woman and every such bench shall have the power conferred by the Criminal P.C. 1973 on a Judicial Magistrate of the first class.
Therefore, from the perusal of Section 5 of the Ordinance, it will appear that the court has been specially constituted in relation to delinquent children.
23. Section 18 of the Ordinance is relating to the bail and custody of children. It provides that whenever a child is arrested or detained or appears or is brought before children's court, such persons shall notwithstanding anything contained in the Code. or in any other law for the time being in force, be released on bail with or without surety, but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any reputed criminal or expose him to moral danger or that the release would defeat the ends of justice. Further. Section 18 (2) of the Ordinance states that when such person having been arrested is not released on bail under Sub-section (1) by the Officer-in-charge of the police station, such officer shall cause him to be kept with fit person in the prescribed manner (but not in a police station or Jail} until he can be brought before a children's court.
24. Section 24 of the Ordinance runs as follows;
24. No joint trial of child and person not a child.-- (1) Notwithstanding anything contained in Section 223 of the Cr. P.C. 1973 (2 of 1974). or any other law for the time being in force, no child shall be charged with or tried for, any offence together with a person who is not a child.
(2) If a child is accused of an offence for which under Section 223 of the Cr. P.C. 1973. or any other law for the time being in force, such child and any, person who is not,a child, would, but for the prohibition contained in Sub-section (1), have been charged and tried together the Court taking cognizance of that offence shall direct separate trials of the child and the other person.
25. Therefore, on perusal of the provisions, just mentioned and discussed above, it is apparent that the aim and scheme of the Ordinance is that a child involved in any offence be immediately separated from the other non-child accused persons and there should not be any mixing of the child with adults accused persons or criminals in any manner. That being so, it does not appear to be consistent, as stated in Section 26 of the Ordinance, that the trial of the child will proceed along with other accused persons, not being child, till the stage of the trial of recording findings regarding the charge and the offence in relation to the child in question.
26. In this view of the matter. I have no hesitation in saying that the joint trial of a child is not permissible under the law. That being so, the Act, which has come into force on 29-4-1982 and published in the Bihar Gaz, on 30-4-1982, which is known as the Bihar Children Act, 1982 (Bihar Act 54 of 1982). has clearly laid down under Section 26 of the Act that all pending cases or proceedings pending in any Court, shall be transferred to the Children's Court immediately on enforcement of the Act.
27. Accordingly, the Act has settled the issue that in no circumstance, the joint trial of the petitioner was permissible in law. The sections of the Ordinance quoted and mentioned in this Judgment have been retained in the Act exactly as the same with identical wordings excepting Section 26, where in the Act the joint trial up to the stage of findings have been omitted.
28. It may be mentioned here that after the passing of the Children Act, 1960(Act 60 of 1960) on 26-12-1960 by the Parliament, a series of successive Ordinances had been promulgated by the Governor of Bihar, the first being Ordinance No. 59 of 1979 promulgated on 17-3-1979. It was replaced by Ordinance No. 75 of 1979 promulgated on. 27-4-1979, Again it was replaced by Ordinance No. 124 of 1979 promulgated on 18-8-1979. This was replaced by Ordinance No. 45 of 1980 promulgated on 4-3-1980. Again it was replaced by Ordinance No. 76 of 1980 promulgated 'on 20-4 1980. Further, it was replaced by Ordinance No. 128 of 1980 promulgated on 11-8-1980. It was again replaced by Ordinance No. 52 of 1981 promulgated on 18-1-1981. It was replaced by Ordinance No. 122 of 1981 promulgated on 23-4-1981. It was replaced further by Ordinance No. 185 of 1981 promulgated on 12-8-1981. and ultimately the Bihar Children Act has been passed.
29. In all these Ordinances and the Act repeal and saving clause was and is provided in Section 60 of the Ordinances and the Act. it will be relevant to mention the wordings of Section 60 of the Ordinance and the Act which runs as follows:
60, Repeals and savings. (11 If. immediately before the date on which this Act comes into force in any area, there is in force in that area, any law corresponding to this Act that law shall stand repealed on the said date:
Provided that such repeal shall not affect
(a) the previous operation of the law so repealed or any thing duly done or suffered thereunder; or
(b) any right, privilege, obligation or liability acquired. accrued or incurred under the law so repealed; or
(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the law so repealed; or
(d) any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy as may be instituted, continued or enforced and any such penalty, forfeiture or punishment as may be imposed, as if this Ordinance had not been passed.
(2) The Bihar Children Second Ordinance, 1981 (Bihar Ordinance No. 122 of 1981) is hereby repealed.
(3) Notwithstanding such repeal, anything done or any action taken in exercise of any power conferred by or under the said Ordinance shall be deemed to have been done or taken in the exercise of powers conferred by or under this Ordinance as if this Ordinance were in force on the day on which such thing or action was done or taken." Therefore, it, will be apparent that the continuity of the provisions of the Ordinance have been maintained and any right, privilege, obligation or liability acquired, accrued or incurred under the law so' repealed etc, and also any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment will be available as if the Ordinance had not been passed.
30. Under the circumstances, I have no hesitation in saying that either by the force of the Ordinance or by the Act, the petitioner is entitled for the advantages of the Children Act with regard to the mode of his trial,
31. The another point, worth consideration is as to whether from which stage any child involved in any offence is to be produced before the Children Court and will not be subjected to the provisions of the Code with regard to the trial.
32. The relevant sentence mentioned in the preamble is that the Act has been made for the trial of delinquent child. The definition of delinquent child, quoted above, is made applicable the moment a child is found to have committed an offence. Section 18 of the Act regarding grant of bail and custody of children clearly lays down that the moment a child appears to have committed an offence and consequently arrested or detained, the question of bail etc., will be considered by the 'children's court." Section 20 of the Ordinance lays down as follows :
20. Enquiry by children's court regarding delinquent children. Where a child having been charged with an offence appears or is produced before a children's court, the children's court shall hold the enquiry in accordance with the provisions of Section 39 and may, subject to the provisions of this Ordinance make such order in relation to the child as it deems fit.
33. Connected with this is also the provisions laid down under Section 21 of the Ordinance, which is relevant. It runs as follows :
21. Orders that may be passed regarding delinquent children (1) Where a children's court is satisfied on enquiry that a child has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the children's court may, if it so thinks fit:
(a) allow the child to go home after advice on admonition;
(b) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person on such parent guardian, or other fit person executing a bond, with or without surety as that court may require, for the good behaviour and well being of the child for any period not exceeding three years;
(c) make an order directing the child to be sent to a special school;
(i) in the case of a child over sixteen years of age, for a period of not less than three years.
(ii) in the case of any other child, for the period until he ceases to be child; Provided that the children's court may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do. for reasons to be recorded reduce the period of stay to such period as it thinks fit :
Provided further that the children's court may, for reasons to be recorded extend the period of such stay; but in no case the period of stay shall extend beyond the time when the child attains the age of twenty years.
(2) Where an order under Clause (b) or Clause (d) of Sub-section (1) is made, the children's court may. if it is of opinion that in the interests of the child and of the public it is expedient so to do, in addition, make an order that the delinquent child shall remain under the supervision of a probation officer named in the order during such period not exceeding three years, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the delinquent child :
Provided that if at any time afterwards it appears to the children's court on receiving a report from the probation officer or otherwise, that the delinquent child has not been of good behaviour during the period of supervision, it may, after making such inquiry as it deems fit, order the delinquent child to be sent to a special school.
(3) The children's court making a supervision order under Sub-section (2) shall explain to the child and the parent, guardian or other fit person, as the case may be, under whose care the child has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the child, the parent, guardian or other fit person, as the case may be, the sureties, if any, and the probation officer.
(4) In determining the special school, or any person to whose custody a child is to be committed or entrusted under this Ordinance the Court shall pay due regard to the religious denomination of the child to ensure that religious instruction contrary to the religious persuasion of the child is not imparted to him.
34. Therefore, on perusal of these provisions just quoted above and also Section 24 of the Act, it is clear that the moment a child is arrested of an offence, the provisions of the Bihar Children Act, 1982 will immediately be made applicable and that will be the starting point from which a child is to be put under the provisions of the Children Act and not under the provisions of the Code for either enquiry, trial or adjudication of the guilt.
35. Therefore, in view of the observations made above. Section 26 of the Act is applicable in the facts and circumstances of the present case and the petitioner's trial will not be taken up in a state of jointness with other accused persons in this case and will be immediately referred to the Children's Court by the learned Additional Sessions Judge.
36. Accordingly, the application is allowed. The impugned order dt. 3-9-1981 is set aside. The petitioner will be dealt under the provisions of the Bihar Children Act, as discussed and observed above.