IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REF. No.1 of 2010 THE STATE OF BIHAR Versus Letter under Reference of the District and Sessions Judge, Jehanabad dated 19th April 2010, judgment dated 22nd March 2002 of Cr. Appeal No. 05 of 2002. ----------- 2. 28.07.2010 The present reference under Section 395 Cr.P.C. has made by the Sessions Judge, Jehanabad under Cr. Appeal No. 05 of 2002. The terms of reference is as follows: “Whether on account of failure of the authorities in constituting the Juvenile Justice Board, as required under Section 4 of the Juvenile Justice (Care & Protection of Children) Act, 2000, which is causing hindrance/obstruction/failure of justice in the proceedings relating to juvenile in conflict with law, the power conferred upon court of sessions under Section 6(2) of the aforesaid Act can be extended to the trial of juvenile in conflict with law (Sessions Judge, Addl. Sessions Judge, Assistant Sessions Judge) ?” The relevant facts of the case was that Basant Kumar @ Buchani Yadav was an accused under Karpi P.S.Case No. 22 of 1999 for the offences under Sections 147, 148, 149, 323, 307, 302 of the Indian Penal Code, 27 of the Arms Act, 3 & 4 of the Explosive Substance Act and Section 17 of the Criminal Law Amendment Act. Since Basant Kumar @ Buchani Yadav was a juvenile, his case was separated and it was sent to the designated 2 court under the Juvenile Justice Act 1986 (in short, to be referred to as the 'Old Act‟). Substance of accusation was explained to the juvenile delinquent Basant Kumar @ Buchani Yadav on 13th March, 2001 under the Old Act, fixing 27th March 2001 as the first date for evidence but despite expiry of one year, the prosecution did not produce any witness. It was on 1st April 2001 that the Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter, in short, referred to as the „New Act‟) came into force. Under the New Act, constitution of juvenile Justice Board was provided for dealing with the juvenile delinquent (described as „juvenile in conflict with law‟). Section 69 of the New Act provides as follows: 69. Repeal and savings- (1) The juvenile Justice Act, 1986 (53 of 1986) is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the Act shall be deemed to have been done or taken under the corresponding provisions of this Act.” In view of the above provisions of section 69 of the New Act, the learned Sessions Judge making the reference is of the view that on coming into force of the New Act on 1st April 2001, the Old Act stands repealed and that, therefore, the juvenile courts as under the Old Act which was dealing with the case of the juvenile in conflict with law became functus officio. It has to be mentioned here that the bail prayer of the present juvenile in conflict with law was earlier rejected by the 3 Juvenile Court under the Old Act and against that order of rejection of bail prayer, an appeal was preferred before the learned Sessions Judge. It was during the pendency of that appeal that a question arose before the Sessions Judge that when the juvenile court as under the Old Act, which was dealings with the case of the present juvenile in conflict with law became functus officio due to the repeal of the Old Act, then what would be the position about the trial or enquiry of the case of the present juvenile in conflict with law in view of the fact that no Juvenile Justice Board which only is competent to deal with the case of the present juvenile in conflict with law has been constituted by the State Government. It is in the backdrop of this position that the learned Sessions Judge has referred to Section 6(2) of the New Act and thereby he has made the present reference to this court for answer. Section 6 of the New Act is as follows; “6. Powers of Juvenile Justice Board-- (1) Where the Board has been constituted for any district, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law. (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise." 4 In view of the above provisions under Section 6(2) of the New Act, the learned sessions Judge has put a question through reference that in such case, when there is no Juvenile Justice Board, duly constituted in that district, can he proceed with in the matter of dealing with the case of the present juvenile in conflict with law exercising all powers of the Juvenile Justice Board, as envisaged under Sections 4 & 6 of the New Act. Prima facie when considered in the light of the facts and the law as put by the Sessions Judge, one can normally think that in this case, the learned Sessions Judge can exercise the power of the Juvenile Justice Board, as provided under the New Act. But the learned G.A.III appearing for the State has cited the provisions under Section 20 of the New Act and he has contended that in the light of the provisions under the Old Juvenile Courts have to deal with such cases pending before them considering as if New Act has not come into force. Section 20 of the New Act is as follows: “20.Special provisions in respect of pending cases- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act cames into force in that area, shall be continued in that Court, as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders 5 in respect of that juvenile in accordance with the provisions of this Act, as if it had been specified on enquiry under this Act that a juvenile has committed the offence…..”. Thus, in view of the above provisions as under Section 20 of the New Act with regard to the special provisions in respect of pending cases it is quit e clear that with respect to the pending cases before the old courts, the cases will be dealt with by that court considering as if the New Act has not been passed and the court, meaning thereby, the juvenile court will proceed with the case of the juvenile delinquent or juvenile in conflict with law and the juvenile court will record all the evidence produced in that case, but that juvenile court will not pass any sentence and for passing the sentence the juvenile court will refer the matter to the Juvenile Board of that area. No doubt, in the present case, presently, there is no Juvenile Board but the problem relating to the present reference is that the dealing or trying the case of the present juvenile in conflict with law by the court concerned in the present case can be the Juvenile court as under the Old Act and which will proceed with the present juvenile in conflict with law and conclude the same, put up the suggestion of passing of the sentence, but will not pass final sentence for which the case of the present juvenile in conflict with law is required to be referred to the Juvenile Justice Board of the area. The question of sentencing will arise only when the trial or enquiry of the case of the present juvenile in conflict with law is 6 concluded. The question, which arose for the present reference was only this much whether the Sessions Judge can exercise the powers of Juvenile Justice Board in this case under the New Act or not. This question while making reference by the Sessions Judge arose only due to non-consideration of the provisions under Section 20 of the New Act which clearly provided that in such case, the proceeding pending before the Juvenile courts under the Old Act, will be carried on by that court, as if the New Act had not been passed. In such view of the matters, the reference is answered in the negative. The Juvenile Court which was dealing with the trial/enquiry of the present juvenile in conflict with law will proceed with the trial/enquiry and conclude the same, but it will not pass any final order for which the matter will have to be referred to the concerned Juvenile Justice Board of the area. Thus, this petition stands disposed of. Jay/ (C. M. Prasad, J.)