HIGH COURT OF JAMMU AND KASHMIR
Gh Hassan Mir
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(1.) THIS revision petition is directed against the order of the Sessions Judge, Srinagar, dated 27th May, 1981 whereby he rejected the prayer of
the petitioner to be treated in accordance with the provisions of Section
20/24 of the Children Act.
(2.) IT transpires from the record that for an occurrence which took place on 17 -2 -81, a challan was produced before the Judicial Magistrate,
Ganderbal for offences under sections 302/307/323/354/148/ 149 RPC
against the petitioner and four others. The learned Judicial Magistrate
committed the said case for trial to the Sessions Court at Srinagar. In
the Sessions Court, an application was moved on behalf of the petitioner
with the prayer that since he is a child, as defined under the Children
Act 1970 his case be separated and he be tried by the Children Act 2970
his case be separated and he be tried by the Children Court. In support
of that application, a School Leaving Certificate showing the date of
birth of the petitioner as 1 -4 -65 was submitted before the Sessions
Court. The learned Sessions Judge, however, rejected the prayer primarily
on the ground that on the date when the order of commitment was made as
also on the date when the charges were to be framed, the petitioner was
more than 16 years of age and hence the provisions of Sections 20 and 24
of the Children Act were not attracted.
(3.) MR . Z. A. Qureshi, learned counsel for the petitioner has submitted that the view expressed by the Sessions Judge that the relevant
date of declaring whether an accused is a child or not is the date at the
time of commitment or the framing of charge and not the date on which the
offence was committed, is an erroneous view.
That on the date of occurrence, which took place on 17 -2 -81, the petitioner was a child within the meaning of Section 2 (d) of the J&K
Children Act 1970 is not in dispute. A plain reading of Section 2 (d) of
the Act read with sections 20 and 24 of the Act makes it clear that a
child, within the meaning of Section 2(d) of the Act, cannot be committed
to stand his trial in the court of Sessions (See in this connection 1981
S. L. J 140). The view expressed by the learned Sessions Judge that the
relevant date, is the date, when either the order of commitment is made
or the date of the charge, is not borne out from the provisions of the
Act as a matter of fact, the reading of various provisions of the Act,
shows that the intention of the legislature was to reckon the age on the
date of the offence and at no other stage. In this view, I am supported
by the observations of the Supreme Court reported in AIR 1982 SC 685 -That
being the position, it was obligatory for the learned Sessions Judge to
have separated the case of the petitioner from the cases of the remaining
co -accused, and sent him up for enquiry and trial before the Children
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