Juvenile cannot be tried by Judicial Magistrate.

This Criminal Revision Case has been filed by the P.W.1/complainant against the acquittal of the accused who was charged with the offence under Sections 450, 376(2)(f) IPC, passed by the Judicial Magistrate, Thirukazhukundram in C.C.No:90 of 2001, dated 9.6.2004.

2. The brief facts of the case for the disposal of this Revision are as follows:-

P.W.2 is the victim girl concerned in this case. At the time of occurrence, she was aged about 8 years only. P.W.1 is her sister. P.Ws.3 and 4 are her parents. P.Ws 7 and 8 are neighbours. On 6.12.1999 at 3.00 pm., the accsued went to the house of P.W.2, whose parents have gone to work. After asking P.W.2 as to where her parents are, he kissed the girl and thereafter committed rape. Due to unbearable pain when the girl began to cry he shut her mouth by his hand. Thereafter, she became unconscious. P.W.1, elder sister of P.W.2 who came for a lunch to the house, found the accused lying nakedly, raised an alarm. The accused on seeing her pushed her and ran away. P.W.2 was bleeding. She was taken to a private hospital Doctor for treatment. P.W.10 Doctor gave preliminary treatment and sent the victim P.W.2 for further treatment at Government Hospital. Thereafter PWs 1 and 2 went to Koovathur Police Station and gave Ex.P.1 complaint which was registered in Crime NO.310 of 1999. After investigation, the final report was filed against the accused for the offences under Section 450 and 376(2)(f) IPC.

3. At the time of occurrence the accused was 17 years and therefore he was treated as a juvenile and tried by the learned District Munsif -cum- Judicial Magistrate, Thirukazhukundram. Before the Judicial Magistrate, P.Ws, 1 to 10 were examined and Exzs.P.1 to P.3 and M.Os 1 to 5 were marked. The Investigating Officer and the Police Officer who registered the case were not examined as witnesses. Even the documents like forensic reports were not marked. The Judicial Magistrate came to the conclusion that the offences alleged against the accused are not proved and therefore acquitted him. Aggrieved over the same, the present revision case has been filed.

4. Mr.S.N.Thangaraj, learned counsel appearing for the revision petitioner who is the defacto complainant would contend that the offence under Section 376 IPC is to be tried only by a Sessions Court, but on the ground that the accused is a juvenile, the Judicial Magistrate herself conducted the trial and without even examining the Investigating Officer, she has acquitted the accused and therefore based on that retrial may be ordered.

5. According to the learned counsel, The Juvenile Justice Act 1986 is not applicable to the case of the accused because he was aged 17 years and not below the age of 16 years at the time of occurrence.

6. According to the learned counsel, even the Juvenile Justice (Care and Protection of Children) Act, 2000 is also not applicable because it is applicable only to those cases when the Act came into force, the accused was below 18 years. But at the time of trial of the case, the accused has completed 18 years and therefore the new Act is also not applicable to him.

7. In support of his contention, the learned counsel for the revision petitioner pressed into service the Five Judges Bench judgment of the Hon'ble Supreme Court in Pratap Singh Vs. State of Jharkhand (2005 SCC (Crl) 742), wherein at page 746 it has been held thus:-

"The question before the Supreme Court was whether the Juvenile Justice (Care and Protection of Children) Act, 2000 would be applicable tin a case where a proceeding was initiated under the Juvenile Justice Act, 1986 and the same was pending when the 2000 Act came into force on 1.4.2001.

The striking distinction between the 1986 Act and the 2000 Act is that under the 1986 Act a juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the 200 Act no distinction has been drawn between the male and female juvenile. The