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Criminal Revision No. 783 of 1962, decided on 176 April 1967.

S. 8(1) read with Criminal Procedure Code (V of 1898), S. 29‑B; High Court Rules and Orders (Lahore), Vol. Ill, Chap. 21‑C, and with Punjab Government Notification No. 578‑Jails, dated 7th January 1924 Magistrate trying juvenile offender must be "specially" empowered by name to try offences committed by juvenile offenders under age of 15 years as required by S. 29‑B, Criminal Procedure Code ( V of 1898).

Held, that a Magistrate trying a juvenile offender should be specially empowered by name and not by virtue of his office.

A Magistrate not empowered is not competent as required by S. 29‑B, Criminal Procedure Code, 1898, to try offences com mitted by juvenile offenders under 15 years of age and proceedings held before such a Magistrate are void.

The above result was arrived at after taking into considera tion Punjab Government's Notification No. 578‑Jails dated 7th January 1924: published in Part I, Punjab Gazette (1924) at p. 12, and detailed also in High Court Rules and Orders (Lahore), Vol. III, Chap. 22‑C, by which all Magistrates of the first class were invested with powers mentioned in S. 8 (1), Reformatory Schools Act (VIII of 1897)].

Emperor v. Udho and others A I R 1943 Sind 107 ref.

The Crown v. Mst. Jannat of Shah Alam Railway Station 29 P L R 536 considered.

S. 5‑Juvenile offender (in this case under 15 years of age) not a previous convict and no "marked criminal tendencies" attributable to him‑Detention of such an offender in Borstal Jail, held, wholly unjustified.

Ghazi Abdur Rahman for Petitioner.

Malik Abdul Hamid for the State.

Dates of hearing: 13th, 14th and 29th March 1967.

This is a revision petition by Muhammad Yousaf, a boy of 14/15 years, who was convicted under section 380, P. P. C. by Syed Sarfraz Hussain, Magistrate First Class, exercising section 30 powers, Lyallpur, and was ordered to be detained in Borstal Jail, Lahore, under section 5 of the Punjab Borstal Act, 1926, for a period of three years. His appeal to the Sessions Judge, Lyallpur, was dismissed.

2. The case of the prosecution, briefly stated, is this. The petitioner was desirous to join as a domestic servant of Azim‑ud- Din. On 3rd August 1961, Azim‑ud‑Din told the petitioner to bring his father so that the terms of his service could be settled. When Azim‑ud‑Din returned home, his wife told him that the petitioner had gone away. At about 2 p.m. they found that a purse containing Rs. 155 in currency notes was missing. The father of the petitioner was contacted, but be did not tell the whereabouts of his son. On 6th August 1961, Azim‑ud‑Din reported the matter to Police Station Kotwali. The petitioner was put under arrest on 6th December 1961. He, while in police custody, pointed out stolen purse from his house. The same was taken into possession and made into a sealed parcel vide memo. Exh. P. A.

3. The prosecution produced Fazal‑ul‑Haq Sub‑Inspector (P. W. 1) and Azim‑ud‑Din (P. W. 2) in support of the accusation.

4. The petitioner when examined admitted that he had stolen the money and that he had spent the same on purchasing his clothes and having time at a festival.

5. Learned counsel for the petitioner has contended that the petitioner was a juvenile offender, i.e., the offender who was under the age of 15 years, at the time of his conviction and that this was a case in which the order of detention in Borstal Institution, should not have been passed at all and that the Magistrate, who had passed the order detaining the petitioner in the Borstal Jail, was not specially empowered by the Provincial Government to exercise the powers conferred by section 8(1) of the Reformatory Schools Act, 1897. Furthermore, there was no notification, as referred to in Chapter 22‑C, High Court Rules and Orders, Volume III. Therefore; the entire trial was vitiated. He inter alia cited at the bar Abdul Waheed v. The State (P L D 1960 Lah. 85), The Crown v. Mst. Jannat of Shah Alam Railway Station (29 P L R 536) and Emperor v. Udho and others (A I R 1943 Sind 107). In the first case Mr. Justice A. R. Changez (as he then was) observed as under:‑--

"If the juvenile is not convicted of murder or any other flag rant offence and does not show any marked criminal tendencies, the Magistrate should make free use of section 562 of the Criminal Procedure Code, 1898, if it is otherwise applicable and should refrain from sending boys of tender age to the Borstal Institution or the Reformatory School. Boys of the age of about 12 years are out of place in the Borstal Institution because if they are sent there, they are likely to mix up with offenders up to the age of 21 years, which is not desireable (pp. 88, 89) C & D."

In the second case Dalip Singh, J., made the following observations:

"The proceedings, however, would be void under section 29‑B of the new Criminal Procedure Code to which counsel for the Crown has called my attention. Under this section as far as I can see at present only the District Magistrate would have been empowered to try this offence."

In the third case cited by the learned counsel for the petitioner Davis, C. J. made the following observations:---

"Section 6 (2) requires that when a Deputy Superintendent of Police is specially empowered by Government under section 6 (2) he should be specially empowered by name and not merely by virtue of his office. No real administrative difficulty can arise in empowering the Deputy Superintendent of Police by name if it is remembered that once a Deputy Superintendent of Police has been especially empowered by name he carries those powers with him wheel he is transferred from one post of Deputy Superintendent of Police to another (p. 107 e, f, g, h)."

6. Learned counsel for the State argued that all Magistrates of the First Class in the former Punjab had been specially empowered vide Notification No. 578‑Jails, dated the 7th January 1924, issued under section 8 (1) of the Reformatory School Act, 1897 to try cases of juvenile offenders under section 29‑B of the Code of Criminal Procedure. Reliance was placed on Chapter 22‑C, High Court Rules and Orders, Volume III. The relevant portion reads as under:‑--

"The Provincial Government has empowered Magistrates of the 1st Class only with powers mentioned in section 8 (i) of the Reformatory Schools Act (Vide Punjab Government Notifica tion No. 578‑Jails, dated the 7th January 1924); but any Magis trate who has not been so empowered may, under section 9 of Act; refer the case of any youthful offender to the District Magistrate to whom he is subordinate, and all Magistrates should do so in suitable cases."

The notification of the 7th January 1924, which was published in Punjab Gazette, 1924 (Part I) at page 12 is to the‑ following effects :‑

"No. 578.----In, exercise of the powers conferred on him by section 8(2) of the Reformatory Schools Act, 1897, the Governor in Council is pleased to invest all Magistrates of the first class with powers mentioned in section 8(1) of the said Act to be exercised within the local limits of their jurisdiction.."

7. In the instant case, the petitioner is not a previous con vict. There is nothing on the record that he had marked criminal propensities. The fact that he did commit an offence. will not bring him in the category of causual offenders. Therefore, his detention in the Borstal Jail was wholly unjustified and I hold accordingly.

8. The contention of the learned counsel for the petitioner that there was no notification No. 578‑Jails; dated the 7th January 1924, is misconceived. This notification was not only mentioned in Chapter 22‑C, High Court Rules and Orders, Volume III, but as detailed in the foregoing‑paragraph, it was published in Punjab Gazette on the 7th of January 1924, Whereby all the Magistrate of the first class were empowered to try juvenile offenders. It appears that when Dalip Singh, J., decided The Crown v. Mst. Jannat of Shah Alam Railway Station this notification was not brought to his notice and his Lordship proceeded to hold that on the District Magistrates were empowered to try the offences o juvenile offenders. The judgment delivered by Dalip Singh, J., in The Crown v. Mst. Jannat of Shah Alam Railway Station is of no assistance for the disposal of this case.

9. The argument of the learned counsel for the petitioner that Syed Sarfraz Hussain, Magistrate First Class, Lyallpur, who tried the case of the petitioner was not specially empowered by name required under section 29‑B, Cr. P. C. Therefore, he was not competent to try the case of the petitioner has substance and must prevail. Following the dictum of Davis, C. J., in Emperor v. Udho and others. I am of the view that a Magistrate trying a juvenile offender should be specially empowered by name and not A by virtue of his office. Therefore, I hold, that Syed Sarfraz Hussain, Magistrate First Class, who tried the case of the peti tioner was not specially empow0d by name and therefore, he was not competent to try the case of the petitioner.

10. For the reasons stated above, I would hold that the proceedings before Syed Sarfraz Hussain, Magistrate, First Class, were void, as he was not specially empowered to try the offences of juvenile offenders under the age of 15 years.

11. In the result, I accept the petition and quash all the proceedings held by the Magistrate, as being without Jurisdiction.

A.H. Petition accepted.

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