- (1.) HEARD learned counsel for the applicant, learned A.G.A. for the State and perused the record. A 13 years old? girl is said to have been kidnapped by the applicant. Learned counsel for the applicant has argued that the applicant? is innocent? and he has committed no offence and? he is a juvenile. He? further submitted that question of juvenility was raised before the learned Magistrate while seeking bail but he did not determine the? question of juvenility and ignored the matter like anything? and have mentioned in his order rejecting the bail? that the applicant appears to be? hale and hearty aged about above 18 years. Learned A.G.A. has opposed the bail but conceded the fact? that if the question of juvenility has been raised then in view of amendment of section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, the court concerned is under legal obligation to decide the question of juvenility first and then pass the order according to law.
(2.) SECTION 7-A of Juvenile Justice (Care and Protection of Children) Act, 2000 reads as under :- " [7-A. Procedure to be followed when claim of juvenility is raised before any court.---(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be : Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect.]" The aforesaid provisions connotes an idea that when the matter of juvenility would be raised by any court, the court shall make an enquiry and take such evidence as may be necessary ( but not an affidavit) so as to determine the age of such person and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be. And if the court finds a person to be juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any passed by a court, shall be deemed to have no effect. Therefore, the Magistrate before whom the question of juvenility was raised as per the statement made by learned counsel at the Bar was under legal obligation to determine the question of juvenility in accordance with law by not doing so the cause of justice has been frustrated and the applicant has been compelled to come up before the High Court to seek bail.
(3.) APART from the aforesaid legal aspect my attention has been drawn by learned counsel for the applicant towards the extract of Kutumb Register showing the year of birth of the applicant as 1998 and in that view of the matter the applicant appears to be below 14 years. The position being so the special enactment of Juvenile Justice (Care and Protection of Children) Act, 2000, has been enacted by the Parliament to deal with such situation and, therefore, this Court has no jurisdiction to entertain the bail of the applicant under section 439 Cr.P.C. With the result application for bail is rejected with the liberty to the applicant to knock the door of the learned Magistrate afresh to get his status of juvenility? determined? according to the procedure established by law. Learned Magistrate is directed to decide the question of juvenility within three months from the date of filing an application in that regard by the applicant followed by the disposal of the bail application by him or by Juvenile Justice Board as the case may be, if made afresh by the applicant.;