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2003 (2) Crimes 468
Gauhati High Court
B.B. Deb, J.
Additional Sessions Judge, North Tripura —Petitioners
versus
State of Tripura —Respondent
Criminal Reference No. 1 of 2002
Decided on 20-12-2002
Counsel for the parties:
For the Petitioner: None.
For the Respondent: Mr. D. Sarkar, P. P.
Headnote:Juvenile Justice Act, 1986 — Section 18 — No juvenile shall be charged or tried together with any other person who was not a juvenile for any offence committed conjointly — Petitioner, a Juvenile charged, u/s. 376, I.P.C. with other accused non-juvenile charged u/s. 323/34, IPC — Non-constitution of Juvenile Board by State Govt. — Pending constitution of Juvenile Justice Board, respective criminal court will have jurisdiction to try a juvenile offender in accordance with general provisions of law.
Held: The Criminal Court cannot wash its hands referring to the provi-sions of Juvenile Justice Act. Since total prohibition is not there, in my consi-dered opinion, pending constitution of the Juvenile Justice Board, the respec-tive criminal court has the jurisdiction to try a Juvenile offender in accordance with the general provision of law as embodied in the Code of Criminal Procedure, but the investigation, inquiry or trial should not be held in open court, but in camera and the assistance of Probation officer shall be ensured during the proceedings, but in no case, a juvenile shall be tried alongwith non Juvenile accused person. On conviction of a juvenile, of course on recording evidence, the convict juvenile shall not be sent to imprisonment where the inmates are non- juveniles. If protected home is available or separate reforms house within four walls restricting their free movement is available, they should be kept there affording opportunities for imparting adequate and suitable educational facilities including pro-fessional/vocational education. If no such structure is available then the juvenile convicts be allowed to be kept by their guardian but under the strict supervision of Probation Officer till he/they attains/attain the age of 18 years. (Para 8)
Result : Reference answered accordingly.
JUDGMENT AND ORDER
B.B. Deb, J.— On a reference under Section 395(1) of the Code of Criminal Procedure, received from the learned Additional Sessions Judge, North Tripura, Dharmanagar in connec-tion with Sessions Trial No. 48(NT/D) of 2001. This Criminal Reference Petition has been registered.
2. The facts leading to the regis-tration of this case could be summa-rised thus:
On the basis of a chargesheet involving five accused persons including accused Shri Gopesh Debnath, appears to be a juvenile, in the commission of offence Punishable under sections 376(1), 323 read with section 34 of I.P.C. the learned Magistrate took cognizance and committed the case to the learned Additional Sessions Judge. After thorough perusal of the materials available and after hearing the learned counsel for the parties, the learned Additional Sessions judge framed charge under section 376(1) of the I.P.C. against the juvenile accused Shri Gopesh Debnath and under section 323/34 I.P.C. against five accused persons including juvenile Gopesh Debnath. Whenever the provisions of “The Juvenile Justice (Care and Protection of Children) Act, 2000” (in short the Juvenile Justice Act”) was brought to the notice of the learned Additional Sessions Judge, he trans-mitted the case record to the learned Chief Judicial Magistrate, West Tripura Agartala, a Juvenile Court for disposal, but the learned Chief Judicial Magis-trate, West Tripura, Agartala returned the case record making an observation that “he was unable to try the case as the Government after the repeal of the juvenile Justice Act, 1986 (53 of 1986) had not constituted the juvenile Justice Board as required under section 4 of the Juvenile Justice (Care and Protection of Children) Act, 2000”. Besides the learned Chief Judicial Magistrate observed that “the State Government had not provided him the infrastructure for the smooth running of the Juvenile Court”. On receipt back the case record, the learned Additional Sessions Judge, North Tripura, Dharmanagar referred the case under section 95 of the Code of Criminal Procedure for decision.
3. For deciding the question involved in this case, the provisions of sections 2(k), 2(1), 4, 14, 17 and 18 of the Juvenile Justice Act are very much relevant and as such are excerpted below:
“2(k) “Juvenile” or “child” means a person who has not completed eighteen years of age”.
“2(1) “Juvenile in conflict with law” means a Juvenile who is alleged to have committed an offence”.
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“4. Juvenile Justice Board.— (1) Notwithstanding anything contai-ned in the Code of Criminal Proce-dure, 1973 (2 of 1974). The State Government may, by Notification in the Official Gazette, constitute for a district or a group of districts specified in the notification, one or more Juvenile justice Boards for exercising the powers and dis-charging the duties conferred or imposed on such Boards in relation to juveniles in conflict with law under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judi-cial Magistrate of the first class as the case may be, and two social workers of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974). On a Metropolitan or, as the case may be, a Judicial Magistrate of the first class and the Magistrate on the Board shall be designated as the principal Magis-trate.
(3) No Magistrate shall be appoin-ted as a member of the Board unless he has special knowledge or training in child psychology or child welfare and no social worker shall be appointed as a member of the Board unless he has been actively involved in health, educa-tion, or welfare activities pertaining to children for at least seven years.
(4) The term of office of the members of the Board and the manner in which such member may resign shall be such as may be prescribed.
(5) The appointment of any member of the Board may be terminated after holding inquiry,
