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1992 DIGILAW 199 (ALL)

Nazmul (minor) v. State of U. P

1992-02-13

K.C.BHARGAVA

body1992
JUDGMENT Mr. K.C. Rhurguvu, J. - This reason is directed against the order dated 20-7-1991 passed by the IIIrd Additional Sessions Judge, Pratapgarh. 2. The short point which requires decision in the present case is as to whether the IIIrd Additional Sessions Judge was justified in deciding the age of the applicant who are alleged to to juvenile. 3. Heard learned Counsel for the applicants as well as learned Additional Government Advocate. 4. Learned Counsel for the applicants has argued that the Additional Sessions Judge and no jurisdiction to decide the question as to whether the applicants were juvenile or not. According to the learned Counsel the jurisdiction vests with the concerned Magistrate and he should have decided the age of the applicants. 5. On the other hand learned Additional Government Advocate has argued that the order of the learned Additional Sessions Judge does not suffer from any illegally or irregularity. 6. From a perusal of the order dated 20.7.1991 pleased be the IIIrd Additional Sessions Judge it will be clear that a question was raised about the age of the applicants. According to the learned Counsel for the applicants both the applicants were minor on the date when the incident took place. He has placed reliance in the case of Gopinath Ghosh v. State of West Bengal ,1984 Supreme Court Cases (Crl) 478. In this case Hon'ble Supreme Court held that "when ever a case is brought before the Magistrate and the accused appears to he aged 21 years or below, before proceeding with the trial or undertaking an inquiry, an inquiry must be made about the age of the accused on the date of the occurrence. This ought to be more so where Special Acts dealing with juvenile equent are force...... The Magistrate may as we I call upon accused also to lead evidence about his age. Thereafter, the learned Magistrate may proceed in accordance with law." 7. In this case, the case had reached the Court of Session and conviction was recorded against the accused. The High Court also upheld the conviction and thereafter the, matter went to the Hon'ble Supreme Court. The Hon'ble Supreme Court set aside the conviction and remitted the matter to the Magistrate for disposal according to law. In this case, the case had reached the Court of Session and conviction was recorded against the accused. The High Court also upheld the conviction and thereafter the, matter went to the Hon'ble Supreme Court. The Hon'ble Supreme Court set aside the conviction and remitted the matter to the Magistrate for disposal according to law. The facts of this case apply to the facts of' the present case also because the age of the applicants on the date of offence is to he decided by the Magistrate alone which is competent to do so under the provisions of law. Learned IIIrd Additional Sessions Judge had no jurisdiction to enter into this controversy. He should have referred this matter to the Magistrate having jurisdiction to try the case for determination of the age of the applicants. Therefore, the order passed by the Illrd Additional Sessions Judge cannot be sustained. The order dated 20.7.1991 is liable to be set aside and the commitment which has been made to the Court of Session is also to be set aside and the matter will have to be remitted to the Magistrate having jurisdiction to try this case to decide the question of age of the applicants on the date of offence. 8. The revision is allowed and the order dated 20.7.91 passed by the IIIrd Additional Sessions Judge, Paragraph in Sessions Trial No. 139 of 1990 State v. Saimuddin is set aside. The commitment of these two applicants to the Court of Session is also set aside on the matter is remitted to the Court of Session by the Magistrate having jurisdiction for determination of the age of the applicants on the date of occurrence in accordance with law.