- (1.) DR. R. R. Misra, J. Notice of this revision has already been served on the State Counsel.
(2.) LEARNED counsel for the parties have been heard. In a case pending before the Court of IX Addl. Sessions Judge, Moradabad against the two accused persons a claim was raised to Mohd. Gufran, accused-applicant, that he is below 16 years and, therefore, he should be sent for trial before the Juvenile Judge concerned. Vide order dated 15-3-1990 the trial court directed the said accused to file his School Certificate of having passed Vth Standard. On the next date an application was moved for summoning the record of Junior High School Timardassari Sambhal. During the pendency of the said inquiry, an application, and 9-B, was also moved which has been disposed of by the IX Additional Sessions Judge, Moradabad by the impugned order dated 20-3-90. By the said order, learned trial court has placed reliance on the provision of Section 63 of the U. P. Children Act 1961 and has passed an order that the trial of the two accused parsons including Mohd. Gufran applicant will proceed together and accused Mohd. Gufran may produce evidence of his age at the stage of defence for getting the benefit of the provision of the U. P. Children Act. On these facts, the contention raised by the learned counsel for the applicant Sri G. C. Saxena Advocate, is that the trial of the applicant along-with the other accused, who is a major, cannot proceed under the law. In support of this submission he has relied on decision of this Court in the case of Guddu alias Pradyamnu Kumar Singh v. State of U. P. , 1990 U. P. Cri minal Law Reports 38 : 1939 JIC 414. The said case is, however, distinguish able inasmuch as in the aforesaid case of Guddu (supra) the date of birth of Guddu was 5-4-70 oil the date of incident. He was admittedly less than 16 years of age. Hence it was held that Guddu was juvenile and the charges have to be separately framed in his case against the juvenile and non-juvenile and the two accused in that case had to be tried separately. That situation is, however, not present in the present case inasmuch as only a claim has been raised in the present case that Gufran accused is under 16 years of age and an enquiry in regard to the same is still pending. Unless a finding is recorded by the trial court that Mohd. Gufran accused is below 16 years of age, the present applicant Mohd. Gufran cannot get any benefit from the aforesaid case of Guddu (supra) cited on behalf of the applicant. The sole submission, therefore, made on behalf of the applicant fails. I, however, find that as the Juvenile Justice Act, 1986 (hereinafter referred to as the Juvenile Act; came into force with effect from 3-12-1986 and in view of provision of Section 63 of the Juvenile Act, 1986 regarding repeal, the U. P. Children Act 1951 relied upon by the trial court is now no longer in existence and the case has to be proceeded with under the provisions of the Juvenile Act, 1986, Section 20 of the Juvenile Act, 1986, however, reads as under : "20. Inquiry by Juvenile Court regarding delinquent juveniles: Where a juvenile having been charged with an offence appears or is produced before a Juvenile Court, the Juvenile Court shall hold the inquiry in accordance with the provisions of Section 39 and may, subject to the provisions of this Act, make such order in relation to the juvenile as it deem fit. " The word "juvenile" has also been defined under the Juvenile Act, "juvenile" means "a boy who has not attained the age of sixteen years". Thus under the Juvenile Act there is a Legislative mandate that if a claim is raised before the trial court that an accused person is a 'juvenile' and has been charged with an offence, it is the Juvenile Court, which will hold an inquiry in accordance with provisions of Section 39 of the Juvenile Act and pass appropriate orders in regard thereto. The word "juvenile Court" has also been defined under the said Act to be a Court constituted under Section 5 of the Juvenile Act. In the present revision there is no mention as to whether there is a separate Juvenile Court in District of Moradabad. However, at what we are concerned in the present case is that in the impugned order passed by the trial court there is a mention to the effect that evidence regarding the age of Gufran accused shall be produced at the stage of defence, which is in my opinion, wholly erroneous in law and is against the Legislative mandate. Hence an enquiry has got to be made first at this stage regarding the age of the applicant Gufran and in case it is found that Gufran accused is a juvenile then only at that stage the decision cited above in the case of Guddu (supra) will become applicable and necessary consequences will follow accordingly. In view of the above, the present revision is dismissed, subject to the observations made above. The Court concerned will now proceed making an inquiry regarding the age of Mohd. Gufran, accused- applicant, first and then proceed in the matter according to law. Revision decided accordingly. .;