JUDGMENT 1. - This revision petition is directed against the order, dated May 22, 1988, of the Sessions Judge, Jaipur District, Jaipur, whereby he has refused the prayer of the petitioner for sending the case to the Children Court for trial. 2. Brief facts giving rise to this petition are that on April 21,1987, Shri Gopal Singh, Inspector, Central Narcotics Bureau, Jaipur checked a truck bearing registration No. CAA 688 at Mahapura turn on National Highway No. 8. On search of this truck the inspector recovered four bags containing contraband opium weighing approximately 105 kg. This truck was being driven by one Jaswant Singh and behind the driver's seat was sitting the present petitioner. When the accused-petitioner was interrogated, it is alleged that he gave out his name as Gurpinder Singh son of Malkiyat Singh, Jat Sikh, resident of Sumalkhedi, police station Malode, District Ludhiana. Both were arrested and the seizure memo of opium was prepared which is Ex. P. 1. After investigation a charge-sheet was submitted for offence under sections 8/18 of the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as "the NDPS Act"), against Gurpinder Singh son of Malkiyat Singh. When the accused was produced before the court he moved an application before the, trial court for staying the proceedings and to transfer his case to Children Court. With this application it was also prayed that while filing the challan of the case the accused had been shown as Gurpender Singh son of Malkiyat Singh; whereas in fact the accused petitioner's correct name is Gurpinder Singh son of Harchand Singh. It was, therefore. prayed that it, would be in the interest of justice to decide the identity of the accused at the very threshold of the proceedings before the trial court. Along with this application various documents were also submitted by the learned counsel. These documents included, the certificates, from St. Paul's School; from Board of Secondary Education, Madhya Pradesh; the Birth certificate; a letter from the Chief Judicial Magistrate, Indore; certificates regarding participation of the accused- petitioner in Sub-Junior Basket-ball Championship; certificate showing the photographs of the accused duly verified by a Legislator certifying that the photograph is of Gurpinder Singh Sumal son of Harchand Singh Sumal who was a regular student of St. Paul Higher Secondary School, Indore in Session 1985-86; certificate again testifying the photograph by one Shri J.C. Upadhyaya and his High School Certificate showing the age. While this application was pending it appears the accused petitioner had approached this' court for getting the controversy resolved and vide order, dated November 20, 1987 my brother Hon'ble Farooq Hussan, J. dismissed the application. In the said application the learned Judge observed that a new controversy has been raised as to whether the person against whom the challan has been filed is Gurpinder Singh or Gurvender Singh and this controversy cannot be decided in this miscellaneous petition. It was further observed that it will be open for the petitioner to raise this objection at the relevant time because the question as to whether the person against whom challan has been filed is Gurpinder Singh, can be decided by the trial court after completing the trial. This order was passed on November 20, 1987, where the learned Judge has also observed that an application was filed before the court below that applicant is a minor, but on the basis of ossification test the application has been rejected. The same application, it appears, again came up for hearing before the same Bench on November 25, l987 and the court observed that "I am of the opinion that aforesaid controversy. cannot be decided in the midst of the trial and this application is dismissed. But at the same time the trial court is directed that he can consider the aforesaid controversy at the time of framing of charge. It will be open for the trial court to discharge the accused-applicant if there is police report filed under S. 173(3) Criminal Procedure Code, it appears that the accused present is not the same who has committed the offence". Yet another application was preferred before this court on the same subject matter which was criminal Misc. Petition No. 54/88 which came up for decision before Hon'ble Kasliwal, J. on February 1, 1988, and he ordered that "the trial court would first decide the question regarding age and identification of the petitioner and thereafter passed an appropriate order regarding further proceeding in the case. Any direction of this court to complete the trial within 4 months is superseded and it is now directed that the above mentioned questions would be decided as expeditiously as possible". Any direction of this court to complete the trial within 4 months is superseded and it is now directed that the above mentioned questions would be decided as expeditiously as possible". After this order was passed accused moved a fresh application before the trial court, in light of the directions passed by Hon'ble Kasliwal, J. This was presented on February 2, 1988 but was admitted on February 3, 1983. In this application the accused submitted that parentage and age has been wrongly recorded by the officials of the Narcotics Department and he is in fact less than 16 years, The learned Sessions Judge considered the documents and passed the impugned order on May 23, 1988. It is pertinent to mention here that earlier to this order the accused had been got medically examined on September 15, 1987 by learned Sessions Judge and the Doctor vide his report, dated September 21, 1987, had informed the Sessions Judge that the age of Gurpinder Singh is about 20 years to 22 years. The learned Sessions Judge by the impugned order has held that the accused is about 24 years of age as shown in the medical certificate and is not 16 years as claimed by him and also that the name of the father of the accused is Milkiyat Singh according to the charge- sheet, while according to the school documents produced he is son of Harchand Singh and, therefore, the application was rejected. 3. The accused petitioner aggrieved by these findings of the learned Sessions Judge has now approached this court in this revision petition. 4. It is contended by Shri S.R. Bajwa, learned counsel for the petitioner that the order passed by learned Sessions Judge is not an order in passed by learned Sessions Judge is not an order in the eye of law as he has neither considered all the documents on record properly nor the law cited before him. It is submitted that in fact the order of the learned Judge is contrary to the order passed by Hon'ble Kasliwal, J. in his order had not only superseded earlier directions but had passed a specific order directing the trial court to decide the question both about the age and the identification, but the learned Judge has in a very cursory manner disposed of the application and has even hot referred to the case law cited before him. It is further submitted that the order of the learned Sessions Judge is contemptuous inasmuch as he has bypassed the judgment of the Supreme Court cited before him and has given no credence to the birth certificate and the entries in the School Registers. It is submitted that since the petitioner has come in revision before this court and the photostat copies of all the documents had been filed before the learned Sessions Judge along with the photographs, this court has sufficient materials on record to arrive at an independent finding, both about the age and identity in face of the law laid down in Umesh Chandra v. State of Raj., 1982 (2) SCC 202 . It is further committed that the trial court grossly erred is not mentioning a word in his order about the affidavit filed by Balveer Kaur, mother, of the petitioner who has also testified to the correctness of the documents submitted. 5. Mr. N.C. Choudhary, appearing on behalf of the Narcotics Department submitted that there is no illegality in the order of the learned Sessions Judge so as to warrant interference in revisional jurisdiction. It is submitted that the petitioner has not produced the original documents before the trial court which could be considered by the learned Sessions Judge and that question of identity can be determined only at the stage of final disposal of the case. He, therefore, submitted that this petition deserves to be dismissed. He however conceded that the points raised had to be disposed in light of Supreme Court judgment in Umesh Chandra's case. 6. I have given my earnest consideration to the rival contentions and have perused the entire record. 7. The controversy about the age and identity in this case has been long drawn and for that the trial could not proceed on merits as yet. In fact it was for this purpose that my brother Hon'ble Kasliwal, J. directed the learned Sessions Judge to decide the question once for all about the age and identity. 7. The controversy about the age and identity in this case has been long drawn and for that the trial could not proceed on merits as yet. In fact it was for this purpose that my brother Hon'ble Kasliwal, J. directed the learned Sessions Judge to decide the question once for all about the age and identity. The another reason was that there is no jurisdiction vested in the regular court to try a person who falls within the definition of a child under the Rajasthan Children Act, 1971, and an enquiry to that effect is contemplated if controversy is raised and it was in this respect that Hon'ble Kasliwal, J. had directed the learned Sessions Judge to decide the question, but it appears that the learned Sessions Judge instead of appreciating the law and going into the facts objectively decided the application in a slipshod manner. The learned Sessions Judge should have first gone into the question of identity and then about the age but he has given no importance to the question of identity in his order though he was specifically directed by this court to decide the same. If the identity of the accused is established to be Gurpinder Singh son of Harchand Singh as the same person Gurpinder Singh son of Malkiyat Singh, then all the documents ought to have been considered in the light of several decisions of their Lordships of the Supreme Court and this court and then the birth certificate and High School Certificate could not have been brushed aside as against the opinion evidence of medico legal jurist so lightly. Since the trial court has failed to resolve the controversy after properly appreciating the evidence and the law, deem it proper to enter into the question of age and identity in this court so that the matter may not be further delayed, by yet another remand order. Since the trial court has failed to resolve the controversy after properly appreciating the evidence and the law, deem it proper to enter into the question of age and identity in this court so that the matter may not be further delayed, by yet another remand order. This is possible because the entire record of the lower courts is before me which contains the photostat copies of all the documents relied upon by the learned counsel for the parties and parties are in possession of all the original documents and have shown to me as such intend to proceed with the case here and now, would also be failing in mentioning that on the trial court's record of this case there is attached a list of cases relied on behalf of the petitioner which conclusively shows that the case law had been cited before the trial court besides three books on Medical Jurisprudence mentioned in the list and none of these books find place in the judgment. This is a sad commentary on the functioning of the trial court and it was not expected from the learned Sessions Judge that such a serious controversy should have been given such a non-serious thought. 8. Before discuss the documents regarding the age would first decide the question of identity. The accused when was detained by Narcotics Department's officers has given out obviously erroneous name of his father. He disclosed his name as Gurpinder Singh son of Milkiyat Singh, Jat Sikh, resident of Sumalkhedi, District Ludhiana. His height has been recorded in arrest memo as 5'-11" and his age has been given as 24 years. It is this boy who is alleged to have been arrested on the spot and is in jail since then. It was he who has been produced before the court along with charge-sheet and is being tried. It was in respect of this boy that the application has been filed about the identity along with his photographs duly attested; and it is this by who has been sent under the name of Gurpinder Singh son of Harchand Singh for medical examination by the learned Sessions -Judge. It was in respect of this boy that the application has been filed about the identity along with his photographs duly attested; and it is this by who has been sent under the name of Gurpinder Singh son of Harchand Singh for medical examination by the learned Sessions -Judge. If the learned Sessions Judge was of the opinion that one, whom, he was sending for medical examination was not Gurpinder Singh son of Harchand Singh, then he have asked the prosecution to challenge that certificates, photographs and Magazine containing photographs submitted before the court are not of the boy present before the court. Gurpinder Singh at the time of his arrest told his father's name as alleged by the prosecution to be Milkiyat Singh resident of Sumalkhedi and all the documents which prosecution relies give out his name to be Gurpinder Singh son of Harchand Singh `Sumal' that is, he used to add `Sumal' after the first name and both Harchand and Gurpinder Singh had been writing Gurpinder Singh Sumal son of Harchand Singh Sumal which leads to an inference that this boy, for reasons best known, did not want to give Indore address but instead gave out his parent village name which is Sumal and it is this village name which is used by him after his name. Besides this all one thing is certain that there is no substitution of the accused in the jail so far and the boy who is sought to be prosecuted is one before the court. Since he has not only been a regular student of the college but had been playing the National Sub Junior Basketball Championship for which several certificates have been awarded to him by Basketball Federation of of India and the Secretary of the Organizing Committee of National School Games along with his photographs individually and in groups and the college magazines, there remains no doubt for consideration that the accused arrested is the one whose photographs have been published in St. Paul High School Magazine as well as those produced on record. Two certificates one signed by a Gazetted Officer, namely, Shri J.C. Upadhyaya, Lecturer, History Department, Government Arts and Commerce College. Paul High School Magazine as well as those produced on record. Two certificates one signed by a Gazetted Officer, namely, Shri J.C. Upadhyaya, Lecturer, History Department, Government Arts and Commerce College. Indore and the other by former Legislator of Municipal Corporation of Indore and a photograph with the seal from one member of Legislative Assembly all showing that the photograph is of Shri Gurpinder Singh Sumal son of Harchand Singh Sumal. These photographs and the certificates have not been challenged by the public prosecutor before the learned Sessions Judge and since the learned Sessions Judge was holding a regular inquiry he either ought to have recorded the statement or should have decided out the existing material. He has not even referred to these certificates and the photographs which arc on record in his order. 9. For the aforesaid reasons I am of the opinion that there is material on record to hold that Gurpinder Singh Sumal son of Harchand Singh Sumal and Gurpinder Singh son of Milkiyat Singh is one and the same boy who is facing trial before the trial court. 10. Now remains the question about the age. Before discussing the documents would like to observe that the law is now well settled by their Lordships of the Supreme Court in Umesh Chandra v. State of Rajasthan (supra). Their Lordships have considered the scope of the inquiry and indicated the manner in which the evidence should be appreciated. Their Lordships did not give much credence to oral evidence in cases about the determination of correct age of the person and held that oral testimony may have utility only if no documentary evidence is forthcoming. Even the horoscope was held to be not reliable test, since it can be prepared at any time to seek needs of the particular situation. But the entries in the School Register and Admission Form regarding date of birth was held to be good proof of age. Section 35 of the Indian Evidence Act was also considered and ultimately their Lordships relied upon the entries in the School and Transfer Certificates. The question about S. 35 of the Indian Evidence Act has also been considered earlier to this not only in the case referred to therein but also in Harpal Singh v. State, 1981 Cr. LJ 1. Section 35 of the Indian Evidence Act was also considered and ultimately their Lordships relied upon the entries in the School and Transfer Certificates. The question about S. 35 of the Indian Evidence Act has also been considered earlier to this not only in the case referred to therein but also in Harpal Singh v. State, 1981 Cr. LJ 1. Regarding the ossification test and medical opinion the court always considers it to be only an opinion which is not a conclusive proof. There are two reasons for the same, one is that such opinion must be corroborated by another evidence direct or circumstantial and secondly there is always a scope of errors on either side, muchless when the person is at the age of transformation from one period to another period in bis life such evidence is only helpful as opinion of an expert. In Emperor v. Quadrat, AIR 1939 All. 708 it has been held as under : "It is true that a doctor is in a better position to form an opinion about the age of a person than a layman, but the statement of a doctor is no more than an opinion. This question has been considered in several cases. We need only cite the observations of their Lordships of the Judicial Committee in 43 IA 256 ; Mohammad Syedol Ariffin v. Yeoh While considering the doctor's certificate on the question of age, their Lordships observed as follows : Dr. Bright, on examination, says that he formed the opinion that the appellant was 21, judging by his teeth, his appearance and his voice. In their Lordships' view such a certificate is worthless. It is in truth not a certificate, but only an assertion of opinion .....Proof on the subject is not advanced by such documents". Relying on the aforesaid case Hon'ble D.S. Dave, J. in Mohd. Hussain v. The State, 1958 RLW 60 observed that the evidence of Medical Officer is helpful as an opinion of an expert, but it is necessary that such experts should bring their technical and scientific knowledge to bear upon the matter which is referred to them while giving their opinion. Hussain v. The State, 1958 RLW 60 observed that the evidence of Medical Officer is helpful as an opinion of an expert, but it is necessary that such experts should bring their technical and scientific knowledge to bear upon the matter which is referred to them while giving their opinion. Regarding the appearance and Judges assessment of age by appearance a caution was given and it was observed that outward appearance are disruptive and a Judge cannot proceed to determine the age simply on his on estimate without any convincing evidence. Similar view had been taken in Chather v. Govindan Kutty, AIR 1958 Kerala 121. Kishorilal v. The State, AIR 1957 Punjab 78 and Narain & Ors. v. State of Rajasthan, 1988 WLN (UC) 60. Going a step further his Lordships Hon'ble D.A, Desai as he then was, speaking for the Beach in Jaya Mala v. Home Secretary, Govt. of Jammu & Kashmir & Ors., (1982) 2 SCC 538 observed as under : "But there is a greater infirmity which strikes at the root of the order. It is alleged in the petition that detenu was a minor aged about 17 years at the time of arrest and detention and that it is difficult to even conceive that this school-going minor boy would indulge into such activities as to be a serious threat to the maintenance of public order. In para 7 of the petition it is alleged that the detenu was not even 17 years of age at the time of his detention. In the return filed on behalf of the State, the only assertion is that this averment is misconceived and needs no reply. But in para 2 of the return under the heading Paragraph-wise reply it was denied that the detenu was a minor and it was further averred that his age was between 18 and 19 years. In support of this averment reliance was placed upto report as to the age issued by Dr. T.R. Sharma attached to Government Medical College, Jammu. Dr. Sharma appears to have examined the detenu for ascertaining his age by radiological and orthopaedic test on May 3, 1982. The relevant portion of the report reads as under : Epiphysis around ankle, hence wrist, elbow and shoulder joints have appeared and completely fused. Epiphysis for iliac crest has appeared and partially fused. Radiological age is between eighteen and nineteen years. The relevant portion of the report reads as under : Epiphysis around ankle, hence wrist, elbow and shoulder joints have appeared and completely fused. Epiphysis for iliac crest has appeared and partially fused. Radiological age is between eighteen and nineteen years. Detenu was arrested and detained on October 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in October 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly therefore, the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This young school going boy may be enthusiastic about the students' rights and on two different dates he marginally cross the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirect, may be little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed''. If in the background of the aforesaid cases the evidence is judged, then it will be also relevant to consider the same in light of Medico legal Jurisprudence wherein a big margin has been provided for acceptance of opinion. It is not in a day month or a year that fusion of the bones is completed. It is a process which takes time and it varies from person to person because climatic conditions, dieting habits, environment, buildup of parents, playful temperament and several other factors are contributors. Thus, there is scope for holding in this case that medical evidence is of no avail to the prosecution. It is a process which takes time and it varies from person to person because climatic conditions, dieting habits, environment, buildup of parents, playful temperament and several other factors are contributors. Thus, there is scope for holding in this case that medical evidence is of no avail to the prosecution. The Radiologist in his report, dated September 16, 1987 gave the estimate that the age is between 20 to 25 years, while the Medico legal Jurist gave between 20 to 22 years and thus, there is discrepancy of 3 years in the same report. This opinion evidence has to be considered in the light of documentary evidence submitted before the trial court the original of which are before me. There is one birth certificate alleged have been issued on March 31, 1986 from Indore the Registrar of the Birth and Death, Municipal Council, Indore states that Gurpinder Singh son of Harchand Singh Nagaiya Singh Sumal was born on June 17, 1972.Then there is a certificate by Principal St. Paul Higher Secondary School, Indore which reads as under : Provisional No. 469 St. Paul Higher Secondary School, Indore M.P. Admission No. 2036 To whom it may concern: This is to certify that Gurpinder Singh Sumal son of Shri S. Harchand Singh Sumal is/was a regular student of class X in the academic year 1985/86. His date of birth according to school records is 17.6.1972 (Seventeenth June Ninteen hundred seventy two). His conduct is good. Appeared for X and secured supplementary. Dated 20.8.86. Sd/- Principal St. Paul Higher Secondary School, Indore (M.P.)"Then there is High School Certificate examination April-May, 1986 which shows date of birth as 17.6.1972 and then there is supplementary examination mark sheet which too shows the same date. Along with these certificates there is an order of the C.J.M. Indore on record wherein one another case of accused was sent to Children Court on 31.3.1986 and therein the age of the accused was shown to be 13 years and 9 months which also shows that his date of birth is same as mentioned in his certificates. There is also mention of the documents in the order. Then there are certificates of various games and sports and certificates issued by Secretary General and President of Basketball Federation of India. There is also mention of the documents in the order. Then there are certificates of various games and sports and certificates issued by Secretary General and President of Basketball Federation of India. These certificates vary from different period and are upto year 1985 which stows that the petitioner had been playing Sub Junior Championship in Basketball meaning thereby he was considered to be Sub Junior obviously muchless than 18 years which is an age of maturity. In any eventuality he could not have been of the age which has been opined by the Medico legal Jurist. Besides this, one faction is very important which has to be borne in mind is that family environment and living of a person has a very important effect on the growth of his body. He comes from a well to do family and has good diet and simultaneously the sportsman, then he is bound to look elder to his age as the development of the bones shall be faster. Even the medical jurists are of the same opinion. I have already mentioned above that the decision of this case depends upon the law laid down by their Lordships of the Supreme Court in Umesh Chandra's case (supra) and if the facts of the present case are seen within the parameters given in that case, then there is no escape from coming to a conclusion that the date of birth of accused Gurpinder Singh is 17th June, 1972 and the occurrence having taken place on 21.4.87, he was obviously below 16 yeas of age on the date of incident and, therefore, his case ought to have been sent to the Children Court. 11. Before parting with the judgment would like to observe that Rajasthan Children Act and Juvenile Justices Act, 1988, are mile stones in the field of social legislation. 11. Before parting with the judgment would like to observe that Rajasthan Children Act and Juvenile Justices Act, 1988, are mile stones in the field of social legislation. This law has been enacted in order to give protection to the infants and to the boys of the age of adolescence that if they commit some offences or go astray then it behoves those who are in charge of maintenance of law and order & dispensing justice to impart in a manner that it may cure the accused, he should not be kept with hard end criminals so that a trail of criminality which has set in his mind should go a long way to make him still more hardened criminal, he is, therefore, to be kept apart from such sort of persons and, therefor while considering the cases under this Act the provisions should be liberally and meaningfully construed so that the object underlying the Act is advanced. Long debates have not only been drawn in respect of juvenile delinquencies but also had been done on reformatory theory of punishments and the criminal jurisprudence as during the last four decades. Old theories have undergone a massive change all over the world and this court and the courts subordinate to this should not be unmindful of the same regret to say that the trial court has neither discussed the law nor the facts objectively and has dismissed the application filed by the petitioner. 12. The result of the aforesaid discussions is that I allow Revision Petition No. 107/88, Gurpinder Singh v. The State, set aside the order of the learned Sessions Judge, Jaipur District, Jaipur, dated May 23, 1988 and direct that the case of the accused-petitioner be sent to the Children Court in accordance with the provisions of Rajasthan Children Act, 1972.Revision allowed. *******