The main legal point established in the judgment is that after the enactment of the Juvenile Justice Act of 1997, delinquent juveniles involved in offenses should be tried under the Juvenile Justice Act and not the Children's Act/Children's Courts Act.

1. Vide order dated 20-12-2002, learned Sessions Judge, Bhaderwah, remitted the case captioned State v. Raju registered under F.I.R. No: 68/ of Police Station Gandoh u/s- 376-R.P.C, C.J.M concerned on the ground that accused before him was only fourteen/fifteen years of age and, as such, being below sixteen years could be tried by a Children™s Court only. On receipt of file, the concerned C.J.M. under his order dated 15-9-2003 made a reference to this Court for having impugned order quashed on the ground that trial of the accused, minor, would have to be conducted under Juvenile Justice Act and not Children™s Act, which was disposed off by this Court vide order dt. 26-2-2004 with the observation that learned C.J.M. being under the revisional jurisdiction of Sessions Court should not have sent the reference to this Court, directly, and with that observation, returned the file to concerned C.J.M., who under another order dt. 12-3-2004 submitted the file to concerned Sessions Court for appropriate orders.

2. On receipt of file from C.J.M., learned Sessions Judge made this reference with the observation that Juvenile Justice Act of 1997 having coming into force and Children™s Act of 1970 having been repealed, the initial order passed by concerned Sessions judge is required to be modified, so as to enable trial of the minor accused under Juvenile Justice Act, which as per his observations, he could not direct, because of the earlier order dt. 20-12-2002. That is how, matter has again come to this Court and, Mr. Parihar appearing for the respondent contends that in view of reference, the trial of accused requires to be conducted under the Juvenile Justice Act and the order under Reference modified suitably.

3. I have perused the record and considered the matter, Moot question involved is, as to after coming into force of the Juvenile Justice Act of 1997, which would be the proper forum for the trial of the case in hand. It may be noticed that prior to the said Act, the Jammu & Kashmir Children™s Act of 1970 and the Children™s Courts Act of 1996 were holding the field. Under section-5 of the Children™s Act, Children™s Courts have been trying offences/cases in relation to delinquent children notwithstanding anything contained in Criminal Procedure Code.

4. On 28th of April 1997, the Act No-VIII of 1997, the Jammu & Kashmir Juvenile Justice Act 1997 was passed, which has come into force under SRO-109 with effect from 1st of April, 1998 under SRO dt. 3-3-1998. Under section 63 of the said Act, the Jammu & Kashmir Children™s Act 1970 and other Laws in force corresponding thereto stand repealed. The term Juvenile under the Act, means a person below the age of sixteen years, if a male, and below eighteen years if a female, for whose protection, treatment, development and rehabilitation etc. alongwith adjudication of certain matters relating to them, the creation of Courts under section-5 for exercise of such powers as might be vested in them has been provided for besides, Juvenile Boards. Conscious that creation of Juvenile Courts was likely to take some time, the Legislature while enacting aforesaid Act has kept room for exercise of powers conferrable on Juvenile Courts by District Magistrates. Sub Divisional Magistrates or Judicial Magistrates of 1st Class with; the addition that such powers may also be exercised by High Court and the Courts of sessions.

5. Thus, presently, the delinquent Juveniles involved in offences have got to be tried under the Juvenile Justice Act and not the Children™s Act/Children™s Courts Act, as they previously were. To that extent, the reference made by learned Sessions Judge being well placed is answered accordingly, and his earlier order of 20-12-2002, in so far as it pertained, to trial of the case under Children™s Act stands modified thus. At the same time, however, nothing having been brought on record to suggest that a Juvenile Court or Board in terms of the Section-5 of Act has been created for District D

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