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1994 DIGILAW 724 (ALL)

PANKAJ KUMAR TRIPATHI v. STATE OF U P

1994-10-19

O.P.JAIN

body1994
O. P. JAIN, J. This is an application under Section 482, Cr. P. C with a prayer that the applicant who, according to him, is a juvenile, may be tried separately by a juvenile court, Varanasi. 2. The brief facts of the case are that on 18th Sept. , 1993 one Narottam Chandgotia was attacked with knife by accused Ram Babu and the applicant Pankaj Kumar Tripathi was standing there with a knife in his hand. According to the prosecution, accused Pankaj Kumar and Ram Babu has taken lift from the deceased Narottam Chandgotia in his car and they committed his murder while travelling by the same car. Both the accused are alleged to have been caught red-handed by the people who were present there. 3. During committal proceedings Suneeta Tripathi, mother of the applicant Pankaj Kumar Tripathi, filed an application on 23rd September, 1993 that her son was born on 25-6-1978 and on the date of offence he was only 15 years and three months of age. He is, therefore, a juvenile who cannot be detained in the jail and should be sent to some Correction Home. 4. The learned Chief Judicial Magistrate, before whom the application was filed, considered the matter thoroughly and after taking into consideration the High School certificate, birth certificate. Kutumb register, horospcope produced on behalf of the accused and the report submitted by the C. M. O, Sonbhadra, according to which the age of the accused was about 18 years, rejected the application of Smt. Suneeta Tripathi by a detailed order. It is this order which is under challenge under Section 482, Cr. P. C. 5. The main contention, raised on behalf of the accused applicant, is that the only "competent court" which means a juvenile court, can determine the age of the offender and that the C. J. M. or any other authority has no such power. 6. The learned counsel has cited 1990 SCC (Cri) 38, Munna v. State, 1989 SCC (Cri) 374, S. C Legal Aid Committee v. Union of India and others, 1989 SCC (Cri) 486 in support of the contention that the court should be vigilant to protect the interest of the juvenile. 7. 6. The learned counsel has cited 1990 SCC (Cri) 38, Munna v. State, 1989 SCC (Cri) 374, S. C Legal Aid Committee v. Union of India and others, 1989 SCC (Cri) 486 in support of the contention that the court should be vigilant to protect the interest of the juvenile. 7. Section 8 (1) of the Juvenile Justice Act (hereinafter called the Act) provides the procedure to be followed by a Magistrate who is not empowered under the Act and it lays down that when any Magistrate not empowered to exercise power of the Board or a Juvenile Court under this Act is of the opinion that a person brought before him under any of the provisions of this Act is a juvenile he shall record such opinion and forward the juvenile and the record to the competent authority having jurisdiction over the proceedings. This section does not provide for the contingency as to what a Magistrate is to do if he is of the opinion that a person brought before him is not a juvenile. Therefore, the only course open to such Magistrate in a case exclusively triable by the Sessions Judge is to commit the accused to the court of Session if prima facie a case is made out against him. 8. The contention that the age of the person concerned cannot be determined by any other authority except the juvenile court is not correct. Section 7 (3) of the Act reads as under: " (3) The powers conferred on the Board or Juvenile court by or under this Act may also be exercised by the High Court and the court of Sessions when the proceeding comes before them in appeal, revision, or otherwise". (emphasis supplied) 9. It is clear from the above provisions that the power conferred on the Board or Juvenile Court may also be exercised by the Court of Session. Section 7 (3) of the Act clearly lays down that the Sessions Judge can exercise this power not only in appeal or revision but even otherwise. Use of the expression otherwise is significant and there is no reason why the Sessions Judge cannot exercise power to determine the age of the offender during the course of the trial. 10. Section 7 (3) of the Act clearly lays down that the Sessions Judge can exercise this power not only in appeal or revision but even otherwise. Use of the expression otherwise is significant and there is no reason why the Sessions Judge cannot exercise power to determine the age of the offender during the course of the trial. 10. This is the view taken by this court in the case of Yogesh Kumar Pathak v. State of U. P. , 1992 U. P CR 486 and I have also taken the same view in an unreported decision, Criminal Misc. Application No. 17905 of 1993, Mumtaj v. State of U. P. , decided on 21-9-1994. Therefore, there is no force in the contention that the age of the offender who claims himself to be a juvenile, cannot be determine by any authority other than the Juvenile Court. 11. In order to safeguard the interest of the accused it is directed that before proceeding with the trial of the accused, the learned Sessions Judge will himself deter mine the age of the accused Pankaj Kumar Tripathi. In case he is found to be below 16 years of age on the date of occurrence, his trial will be separated from the remaining accused and Pankaj Kumar Tripathi will be sent to Juvenile Court to be dealt with under the provisions of the Act. In case it is found that he was above 16 years of age on the date of incident, the learned Sessions Judge shall proceed to try him alongwith the co-accused. 12. With these directions the application under Section 482, Cr. P. C. is disposed of finally. Application disposed of. .