ROOP SINGH v. STATE OF RAJASTHAN — 1986 DIGILAW 63 (RAJ)

Judgment MAHENDRA BHUSHAN SHARMA, J. ( 1 ) A Sessions case was committed to the learned Sessions Judge and a question arose before him as to whether non petitioner Surjia alias Surjan Singh is a child within the meaning of Section 2 (g) of the Rajasthan Childrenst Act, 1970 (for short the Act ). The learned Sessions Judge under his order dated September 27, 1983 ordered that he shall make an inquiry on the question to whether the accused is a child within the meaning of section 2 (g) of the Act or not? Thereafter evidence for the parties were recorded and the learned Sessions Judge under -the impugned order dated February 18, 1984 recorded a finding that the accused-non- petitioner is a child within the meaning of section 2 (g) of the Act, because at the time when the offence was committed he had not attained the age of 16 years. Because any offence committed by a child as defined in section 2 (g) of the Act Is exclusively triable by a Childrens Court. In this case the Chief Judicial Magistrate, Jodhpur the learned Sessions Judge ordered that the case shall be tried by the Children Court. Aggrieved against the order the present revision has been filed. ( 2 ) THE facts relevant for the disposal of the revision petition may now be stated. The accused-non- petitioner is said to have Inflicted Kulhari blow on the bead of Ram Singh on May 18, 1983. F. I. R. No. 17 was registered against the accused-non-petitioner at the Police Station, Mandari under section 302 of the Indian Penal Code. The accused was arrested the same day and in the arrest memo the age of the accused was shown as 18 years. After investigation a charge-sheet was filed against the accused non-petitioner and the learned Magistrate committed the accused to the court of Sessions, Balotra. An application was filed on behalf of the accused-non-petitioner on September 27, 1983 wherein it was stated that at the time when the offence was committed i. e. on May 18, 1983 the accused had not attained the age of 16 years and as such was a child under section 2 (d) of the Act. An application was filed on behalf of the accused-non-petitioner on September 27, 1983 wherein it was stated that at the time when the offence was committed i. e. on May 18, 1983 the accused had not attained the age of 16 years and as such was a child under section 2 (d) of the Act. The learned Session Judge gave notice of this application to the Public Prosecutor heard the arguments and held that by virtue of subsection (3) or section 7 of the Act, the Sessions Judge was empowered to exercise powers of the Children Court in so far at the question as to whether the accused is child within the meaning of Section 2 (d) of the Act or not and, therefore, be ordered that he will make an inquiry into the question of age of the accused whether he had or not attained the age of 16 years on the date of the offence is said to have been committed. During the course of inquiry on the question of age on behalf of the prosecution the statement of Sampatram (P. W. 1) and Shri Bhagwan Rajmadori, (P. W. 2) were recorded. On behalf of the accused statements of Kanaram (P. W. 1) Gumna (P. W. 2) and Vishnu (P. W. 3) father of accused were recorded. The accused did not examine himself. Besides the ocular evidence the prosecution and the accused also placed reliance on the documentary evidence and the learned Sessions Judge under his order dated February 14. 1984, as already stated earlier held that on the day of the incident i. e. May 18, 1983 the accused had not attained the age of 16 years and, therefore, was a child under section 2 (d) of the Act. Because on offence committed by a child is exclusively triable by the Childrens Court and, therefore, the Sessions Judge sent the case to the Children Court for trial in accordance with law. ( 3 ) THE contention of Mr. Bisnoi learned counsel for the petitioner, who is the father of deceased Ramesh is that the finding of the learned Sessions Judge that the accused Sura Jam had not attained the i. e. of 16 years on May 18, 1983 is a perverse finding and is such which could not be arrived at on such evidence. Bisnoi learned counsel for the petitioner, who is the father of deceased Ramesh is that the finding of the learned Sessions Judge that the accused Sura Jam had not attained the i. e. of 16 years on May 18, 1983 is a perverse finding and is such which could not be arrived at on such evidence. According to him, the learned Sessions Judge has not taken into consideration the very important piece of evidence, Ex. D 5 statement of accused-non-petitioner recorded in criminal case No. 218/1979 on February 20, 1981 wherein the accused has given his age as 15 years: the estimate about his age of the learned Sessions Judge was also 15 years. The learned Sessions Judge only referred to this document but did not advert to it. The contention of learned Advocate is that if this document would have been looked into, it would corroborate case of the prosecution that the date of birth of the accused-non-petitioner was May 2, 1966 and the accused had not only attained the age of 16 years but had crossed that age on May 18, 1983. He further contends that the learned Sessions Judge lost sight of the fact that Sampat Raj P. W. I a Head Master knew the accused and his father. According to the statement of Sampatraj be joined his school. Government Primary School, Araha on September 1. 1975 and had left it on August 25, 1976. He, therefore, could not have joined Government Higher Middle School Samdari on July 7, 1976. His last contention is that the best person to depose about age of the accused could have been his father, who has appeared as P. W. 3, but he does not say as to when the accused-non- petitioner was born. He is unable to give the date of birth of any of his children and therefore, the accused failed to prove that he had not attained the age of 16 years on the date when the offence was committed. Mr. Rajpurohit learned counsel for the accused-non-petitioner on the other hand has contended that on the appreciation of evidence the learned Sessions Judge arrived at a finding of fact that the accused non-petitioner had not attained the age of 16 years on the day of the incident I. e. May 18, 1983. Mr. Rajpurohit learned counsel for the accused-non-petitioner on the other hand has contended that on the appreciation of evidence the learned Sessions Judge arrived at a finding of fact that the accused non-petitioner had not attained the age of 16 years on the day of the incident I. e. May 18, 1983. The said court had Jurisdiction to record such a finding and as such no jurisdictional error has been committed and while sitting in revision the finding of the learned Sessions Judge on the question of age should not be interfered with. In support of his contention the learned counsel placed reliance on Thakur Ram v. State of Bihar1. Bhawani and Ors. v. State of Rajasthan2. Ramesh Chandra v. State of Rajasthan3, and Mahavir v. State of A. P. 4 ( 4 ) IN Thakur Rams case 1966 Cr. L. J 700, an application was filed before the Magistrate that the case should be sent to the Court of Sessions as the offence comes under section 386 or 387 I. P. C. The learned Magistrate dismissed the application filed on behalf of the prosecution. The State did not file the revision against the aforesaid order, but one Sagarmal, an informant in one of the three cases filed a revision petition. The learned Sessions Judge allowed the revision petition observing that the. cases are of very serious nature and the framing of the charges under section 386 or section 387 cannot be ruled out altogether. He directed the Magistrate to commit the case for trial to the Court of Sessions. An application for revision was filed before the High Court which dismissed the revision petition observing that the refusal by the Magistrate to framing charge under section 386 or 387 of the Indian Penal Code amounts to an order of discharge of the accused of the offence under those sections. The High Court also observed that on the material on record the Sessions Judge was not unjustified in passing the impugned order of commitment of the accused in four cases. An application made to the High Court for a certificate of fitness to the appeal to the Supreme Court was rejected. The case was taken to the Supreme Court. It was observed by their Lordships as under: In a case which has proceeded on a police report a private party has really no locus standi. An application made to the High Court for a certificate of fitness to the appeal to the Supreme Court was rejected. The case was taken to the Supreme Court. It was observed by their Lordships as under: In a case which has proceeded on a police report a private party has really no locus standi. No doubt, the terms of Section 435 under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could even have taken up the matter suo motu. It would, however, not he irrelevant to bear in mind the fact that the courts Jurisdiction was invoked by a private party. The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters a party who is treated as the aggrieved party is the State, which is the custodian or the special Interests of the community at large and so it is the State to take all the steps necessary for bringing the person who has acted against the social interest of the community to book. It will be clear that their Lordships observed that there are few exceptions to the rule enunciated above. It will be clear that the facts of that case were such that their Lordships observed that at the instance of the private party the revision should not have been entertained by the Sessions Judge. In the case of Bhanwar 1977 (2) R. Cr. C. 61, this Court was dealing with the revision petition whereby the learned Sessions Judge had set aside the order passed by the Sub-Divisional Magistrate, Kisangarh is charging the accused-non-petitioner. In those facts it was held that the revisional jurisdiction of the court under section 439 Cr. P. C. is normally to be exercised only in exceptional cases when there is a glaring defect in the procedure of there is a manifest error of point of law and consequently there has been a glaring mis-carriage of justice. In the case of Ramesh Chandra Cr. L. R. (Raj.) 1983, 229, in Para 3 it has been observed that in case a pure finding of fact is based on appreciation of evidence, the court of revision should not interfere with it. In the case of Ramesh Chandra Cr. L. R. (Raj.) 1983, 229, in Para 3 it has been observed that in case a pure finding of fact is based on appreciation of evidence, the court of revision should not interfere with it. In the last case of Mahavir 1983 (All.) L. J. 246, case under section 145 Cr. P. C. , it was held that the evidence cannot be reassessed and the question of possession, cannot be decided while sitting in the revisions. ( 5 ) FROM the authorities referred to earlier it can be laid that if a revision petition by a private party in a State case is filed, the court should be slow in interfering, but there may be exceptional case where; the finding of fact arrived at by the court is perverse or the court has ignored material evidence while arriving at that finding. In such cases the finding cannot be said be binding on revisional court and the revisional court has powers to reappraise the evidence, take into consideration the evidence, including the evidence which has been ignored by the court and then arrive at a finding. In case the court comes to the conclusion that the finding of fact arrived at by the lower court is perverse or is based on no evidence, or is such that no reasonable man could have arrived at the material on record, the court of revision has powers to interfere with that finding of fact. ( 6 ) IN the instant case, generally an offence under section 302 I. P. C. is exclusively triable by the Court of Sessions but for the person who is accused of an offence - under section 302 of the I. P. C. and has not attained the age of 16 years on the day of the offence, and as such is a child within the meaning of section 2 (d) of the Act, the Children Court alone has jurisdiction to try. Some benefits have been given to such a person who is an accused on an offence and is a child within the meaning of section 2 (d) of the Act. Some benefits have been given to such a person who is an accused on an offence and is a child within the meaning of section 2 (d) of the Act. The scheme of the act will show that when any person accused of even a non-bailable offence and apparently, a child is arrested and detained and appears or is brought before the, children court, be has to be released on bail, unless there appears reasonable ground for believing that the release is likely to bring him into association with any notorious of criminal expose him to moral danger or that his release on bail by the officer incharge of the Police Station as aforesaid under sub-section (1) of section 18 of the act, then the Officer shall cause him to be kept in an observation home in the prescribed manner, but not in a police station or jail, unless be could be brought before the childrens court. The question as to whether a person accused of a non-bailable offence including an offence under section 2 (d) of the Act, has to be decided by the Children Court by virtue of section 32 of the Act. But by virtue of section 7 subsection (3) of the Act the powers conferred on the Board or Court by or under the Act may also be exercised by the High Court and the Court of Sessions, when the proceedings comes before them in appeal or revision or otherwise. Therefore, when the case was committed to the learned Sessions Judge. Balotra that court could exercise the powers of the Children Court under section 32 of the Act. The Sessions Judge on a question being raised on behalf of the accused-non-petitioner as already stated in earlier part of the order held that he will hold an inquiry. It was for the accused-non-petitioner who had raised a plea that be had not attained the age of 16 years and as such was a child within the meaning of section 2 (d) of the Act to prove the same. ( 7 ) AS per the arrest memo age of the accused was recorded as 18 years. The learned Sessions Judge recorded the evidence, as already stated earlier, recorded a finding that he had not attained the age of 16 years, it has already been stated earlier that the learned Sessions Judge has not taken into consideration Ex. ( 7 ) AS per the arrest memo age of the accused was recorded as 18 years. The learned Sessions Judge recorded the evidence, as already stated earlier, recorded a finding that he had not attained the age of 16 years, it has already been stated earlier that the learned Sessions Judge has not taken into consideration Ex. D. 5 a very Important document. He has simply referred to it but has not adverted to it. The learned Sessions Judge has also not taken into consideration the fact that when the accused-non-petitioner had left Araha Government Prathmik School on August 25, 1976 how could he be admitted in Government Primary School, Samadari on July 7, 1976. There is no dispute that the accused-non-petitioner and his father Vishnu D. W. 3 are residents of village Araha. Sampatraj P. W. 1 was posted a Headmaster, Araha Government Primary School. He has stated that he is posted there since the year 1975 and that he knows the accused-non-petitioner Surjansingh and his father Bishansingh. The accused-non-petitioner studied in the school for 6 to 7 months and, therefore, he knows him. He had come on transfer to the school from Railway School, Samadari and had got the transfer certificate. In the said transfer certificate, the date of birth was entered as May 2, 1966. He had come alongwith the admission register on the School wherein at serial number 745 the name of the accused-non-petitioner appeared, and the date of birth was entered as May 2, 1966. He proved Ex, P. 1 which was issued on the strength of the record of the School. In Ex. P. 1 also the date of the birth of the accused-non-petitioner is entered as, May 2, 1966. In cross-examination he stated that at the time of admission, an admission form is also filled in by the guardian, on behalf of the scholar. It was filled in the case of the accused non-petitioner also, but the record was destroyed during floods. He had made a categorical statement that the accused-non-petitioner entered the school on September 1, 1975 and left the school on August 25, 1976. In cross-examination he has further stated that he knows the accused-non-petitioner and his father personally and the father of the accused is, employed in Samdari as a railway servant. He had made a categorical statement that the accused-non-petitioner entered the school on September 1, 1975 and left the school on August 25, 1976. In cross-examination he has further stated that he knows the accused-non-petitioner and his father personally and the father of the accused is, employed in Samdari as a railway servant. A look at the voters list will show that the name of the accused finds mention t herein and his age is recorded as 21 years. P. W. 2 Shri Bhagwanraj Bhandari is an Upper Division Clerk in the Office of Sub-Divisional Officer. Balotra. He had brought the record of the voter-list of Pachpadra Assembly Constituency Segment Araha for the year 1983. He has stated that at serial number 845 name Surajsingh son of Vishan Singh appears and the age is recorded as 21 years. He also stated that before preparing the voters list the Patwari goes to the house of the people and the head of the family fills voter card which is signed by the head. In the voter card the names of Vishansingh and others members of his family are entered. That card was filled In on May 5, 1983 and the house number is 124 village Araha. He further states that on the voters card Matadats card) Ex. p. 4 at A to B the signature is of Vishansingh as head of the family. No doubt he has stated that he did not himself go to the house of Shri Vishansingh and this job is done by Patwari. Contrary to the above evidence Vishansingh D. W. 3 father of the accused-non-petitioner has stated that his eldest, on is Indersinsh who is aged about 221/2. Next is Narain Singh aged about 19 years. He then stated that after Narainsingh Surjansingh was born, then corrected himself and stated that in between Narainsingh and Surjansingh a daughter was born but she died. He is unable to give the date of the birth of any of his children. Merely because he stated that Surjansingh was aged 151/2, no reliance can be placed on his statement in the absence of date of birth of any of the children including the accused non-petitioner. He even denied that his son was admitted in Araha School or in Railway School at Samadari. Merely because he stated that Surjansingh was aged 151/2, no reliance can be placed on his statement in the absence of date of birth of any of the children including the accused non-petitioner. He even denied that his son was admitted in Araha School or in Railway School at Samadari. There is no reason why Sampatraj P. W. 1 Headmaster of Araha School who has no ill-will or enmity against the accused-petitioner or his father will depose that the accused-non-petitioner took admission in his school in the month of September 1975 and had brought a transfer certificate from Railway School Samdari. There is no dispute that the father of the accused-non-petitioner is a railway servant and, therefore, the possibility cannot be excluded that his son at a certain time might have studied in a railway school. There appears to be no reason to disbelieve the statement of Sampatraj more so, when his statement is looked into alongwith a document Ex. p. 5, a document produced by none-else but by the accused-petitioner. As per the school records of the two schools, railway school Samdari and Government Primary School Araha, the date of birth of the accused-non-petitioner is recorded as May 2. 1966. Ex. P. 5 is dated February 24. 1981. This is a photostat copy received from the official record of the statement of the accused-non petitioner Surjansingh In a criminal case under section 4/9 of the Opium Act, where accused have his age as 15 years and the estimate of his age of the presiding officer was also 15 years. Even if the estimate of the presiding officer about the age of the accused-non-petitioner age on February 24, 1981 was 15 year. The present occurrence took place on May 18, 1983. Thus the age of the accused-non-petitioner on May 18, 1983 should be above 16 years or was near about 17 years. In the school record at Araha and Government School Samdari his date of birth is recorded. May 2. 1966. Thus In the year 1981 his age as stated by him was 15 years and therefore on May 18, 1983 his age should be more than 16 years. It can therefore be said that the learned Sessions Judge ignored a very important piece of evidence Ex. P. 5 in arriving at the conclusion about the age of the accused-non-petitioner. 1966. Thus In the year 1981 his age as stated by him was 15 years and therefore on May 18, 1983 his age should be more than 16 years. It can therefore be said that the learned Sessions Judge ignored a very important piece of evidence Ex. P. 5 in arriving at the conclusion about the age of the accused-non-petitioner. I have already dealt with the statement of his father Vishansingh (P. W. 3) and at the cost of repetition it can not he said from his statement that what was the age of his son the accused non petitioner on the date when the offence was committed. He has admitted in his cross-examination that be applied for railway pass and in the application the date of birth of his son is recorded, but no record has been filed. So far as P. W. 2 Gumna is concerned, he even does not remember the date of birth of his son and the date of his own marriage but stated perhaps the date of birth of his only son is October, 58. He admits that many other children have been born to his neighbour but he is unable to give the date of birth to any one of them. Thus from his statement it cannot be said that the date of birth of the accused-non-petitioner was January 1, 1968 as alleged by the defence. Coming, to the statement of Kanaram P. W. 1, he was the Headmaster of Government Primary School Samdari only for the last one year. He was not the Headmaster of that school at the time when the non-petitioner is said to have been admitted In that school. According to the statement as per admission register Ex. D. 1 Surjansingh son of Vishansingh was admitted on July 7, 1976 in Government Higher Primary School Samdari Station in First Class; His name was struck out on August 22, 1977. The entries are not in his handwriting. He has stated that the date of birth was entered as per his admission from Ex. D. 3 but none has proved that form Ex. D. 3. Even Kanaram does not say as to in whole handwriting it is. He has admitted that in Samdari there is Northern Railway Primary School which is an Institution separate from the institution of which he is the Headmaster. D. 3 but none has proved that form Ex. D. 3. Even Kanaram does not say as to in whole handwriting it is. He has admitted that in Samdari there is Northern Railway Primary School which is an Institution separate from the institution of which he is the Headmaster. I have already said earlier that as per the record which has been proved by Sampatraj P. W. 2 the accused- non-petitioner; had left the school on August 25, 1976 and, therefore, it does not appear how he could have sought admission in Government Higher Primary School. Samdari on July 7, 1976. ( 8 ) ON the evidence on record, therefore, it can be said that the finding of the learned Sessions Judge that the Accused-non-petitioner had not attained the age of 16 years on the day of the incident i. e. May 18, 1983 is perverse and was arrived at ignoring important piece of evidence. ( 9 ) ON the evidence on record it can be said that the date of birth of the accused-non petitioner is May 2nd, 1966. He had thus attained the age of 16 years, but rather was more than 16 years and as such was not a child within the meaning of section 2 (d) of the Act. The case should, therefore be tried by the Sessions Judge, Balotra and not by the Childrens Court. ( 10 ) CONSEQUENTLY, I allow this revision petition, set aside the order dated February 14, 1984 of the learned Sessions Judge, Balotra and hold that the accused-non-petitioner was not a child within the meaning of section 2 (d) of the Act (Rajasthan Childrens Act) and as such the offence with which he is charged Is not triable by the Children Court and is triable by the Sessions Judge, Balotra. The file shall go from the Childrens Court (C. J. M.) to the Court of Sessions Judge, Balotra who shall try the accused in accordance with law. Petition allowed.