SHEIKH ABDUL AZIZ v. STATE OF U P — 1995 DIGILAW 295 (ALL)

N. B. ASTHANA, J. Opposite party No. 2, Dost Mohammad filed a com plaint under Sections 147, 352, 504 and 506, I. P. C. in the Court of HI Judicial Magistrate, Varanasi. It was registered as criminal case No. 82 of 1992. It was dismissed by the Magistrate under Section 203, Cr. P. C. on 11-1-1993 on the ground that no evidence has been adduced to indicate that the marriage of the complainants son took place with the daughter of Abdul Aziz. He did not go into the merits of the evidence adduced under Section 202, Cr. P. C. Aggrieved by this order the complainant filed criminal revision No. 73 of 1993 which was decided by XI Addl. Sessions Judge, Varanasi on 28-1-1995. The revisional court after discussing the evidence adduced in the case came to the conclusion that a prima facie case has been made out. The operative portion of the judgment is that the accused are summoned for the offence under Sections 147, 352, 504 and 506, I. P. C. and that they would appear in the trial court on 28-2-1995. It was argued that under Section 398, Cr. P. C. the revisional court could have directed the trial court to make further enquiry in the matter as contemplated by Section 398, Cr. P. C. and that the revisional court itself could not have ordered for summoning the accused. This argument appears to be correct. The revisional court could not have directed for summoning the accused. He could have directed only for making further enquiry as contemplated under Section 398, Cr. P. C. 2. The revision is allowed in part. The order passed by the revisional court is modified. The case is seat back to tie Magistrate under Station 398, Qr. P. C- for making further enquiry in though, Revision partly allowed accused facing trial it should be disposed of according to the provisions of the Juvenile Justice Act. Taking that view of the matter the contention of the applicant Nos. 1 and 2 are taken together and disposed of. 2. Learned counsel for the applicants has submitted that under Section 8 an enquiry was to be conducted by the Magistrate prior to commitment of the accused to the Court of Session but the said proceeding was not taken up at that stage, plea has been taken when the case has been committed to the Court of Sessions. 2. Learned counsel for the applicants has submitted that under Section 8 an enquiry was to be conducted by the Magistrate prior to commitment of the accused to the Court of Session but the said proceeding was not taken up at that stage, plea has been taken when the case has been committed to the Court of Sessions. Even then the age of the applicants should be determined by the Committing Magistrate under Sec. 8 of the Juvenile Justice Act. He has referred to the case of Sheo Mongol v. The State of U. P. , 1990 UP Crr 326, wherein it has been held that when the Magistrate did not determine the age of the Juvenile and committed the case to Sessions Court, the Sessions Judge should send back the case to the Court of Magistrate with a direction to proceed afresh keeping in view the provisions of Section 8 of the Act. 3. He has also referred the case of Kamlesh Kumar v. State of U. P. , 1994 ACC 650, wherein it has been held that Section 8 confers the jurisdiction only on a Magistrate to determine the age of juvenile delinquents. Session Judge has no jurisdiction and is bound to refer the question of age for determi nation by proper authority. The matter was remanded back to the Magistrate for determination of age. The order of commitment to the Court of Sessions was set aside. 4. In another case reported in 1990 UP Cr R 265, Ankesh Kumar Misra v. State of U. P. , it has been held that a fresh full dress enquiry should be made by the competent authority to determine the age of the juvenile. The matter was sent back to the Chief Judicial Magistrate to determine the age of the applicant even after the case was committed to the Court of Sessions. 5. In the case of Najmul v. State of U. P. , 1993 JIC 470 , it has been held that the Session Court has got no jurisdiction to decide the question as to whether applicants are juvenile or not. The jurisdiction lies with the Magistrate before whom the case was brought. The commitment order was test aside and the matter was remanded to the Court of Magistrate to decide the question of age. 6. The jurisdiction lies with the Magistrate before whom the case was brought. The commitment order was test aside and the matter was remanded to the Court of Magistrate to decide the question of age. 6. In the case Gurmukh Singh v. State of U. P. , 1990 UP Crr 264, a dispute arose as regards determination of the age of the juvenile delinquent in the court of Sessions Judge which he decided on physical appearance of the appli cant. The Honble Court after referring the case of Gopi Nath v. State of West Bengal, AIR 1984 SC 237 , referred the matter to the Magistrate to determine the age of the delinquent. 7. The learned counsel has also referred the case of Krishna Bhagwan v. State of Bihar, a Full Bench case of Patna High Court reported in 1991 SC R 567. In that case the applicant was convicted under Section 302, IPC and other sections and during the trial he took up a plea for the first time that he was a minor of the date of the commission of the offence and should not have been tried by the Sessions Judge. It was held that the plea can be entertained even at the appellate stage. The matter be referred to the Juvenile Court if it is necessary to determine the age of the accused under Sec tion 32 of Juvenile Justice Act. 8. The learned counsel has submitted that from the above decisions it appears that not only after commitment of the case to the Sessions Court but also during appeal the question as regards to the minority when taken up was considered by superior courts and referred the matter to the Magistrate to determine the age of the juvenile accused. So following the ratio of the decisions the learned Sessions Judge was not competent to initiate proceedings to determine the age of the applicants and it should be sent to the Magistrate who committed the case to the Sessions Court to determine the actual age of the applicants after setting aside the impugned order. 9. Learned counsel for the complainant has submitted that Sessions Court has got ample power to determine the question under Section 7 (3) of the Juvenile Justice Act and according to him the learned special Judge was justified in initiating proceeding in order to determine the age of the appli cants. 9. Learned counsel for the complainant has submitted that Sessions Court has got ample power to determine the question under Section 7 (3) of the Juvenile Justice Act and according to him the learned special Judge was justified in initiating proceeding in order to determine the age of the appli cants. He has referred the case of Leeladhar v. State of U. P. 1991 UP Cr R 288 : 1991 JIC 486 (All), wherein it appears that the question of determin ing the age of minor accused was raised during the trial in the court of sessions. It was held that since it was never canvassed in the court below the applicants should file an application before the Sessions Judge who will determine the age of juvenile after adopting certain procedure. 10. In the case of Mahboob Alam v. State of U. P. , 1993 ACC 26, where in it was held that the learned Sessions Judge will make proper enquiry regard ing age of the accused juvenile and take such evidence as may be considered necessary by him in this behalf to determine the age of the accused. 11. In the case of Dial Singh v. State of Punjab, 1994 (1) Crimes 860, it was held that under Sections 7 (2) and (3) of the Juvenile Justice Act, 1986 powers conferred on a Board or a Juvenile Courts by or under the Act may also be exercised by the Session Court or High Court when proceedings come before them in appeal or revision or otherwise. So the Sessions Judge is legally competent to decide the question of age of the applicants as raised by him in the application. 12. in the decision reported in 1992 UP Cr R 486-Yogesh Kumar Pathak v. State of U. P. , it has been held that after commitment the Sessions Court has jurisdiction to decide the question of age if it was not raised before the committing Magistrate. 13. So from the above observations it appears that some of the courts have preferred that inquiry with regard to the determination of age should be done by the Magistrate concerned under Section 8 of the Juvenile Justice Act, but in Krishna Bhagwans case (supra) it was observed that in that circumstances the matter be referred to the Juvenile Court for determination of the age under Section 32 of the Act. It also appears from the decisions sub mitted by learned counsel for the complainant that the Honble High Courts preferred Session Courts to make inquiry as regards the age of the Juvenile, without remanding the case to the court of Magistrate. In those decisions power of the Session Courts under Section 7 (3) of the Act has been discussed. 14. Section 7 (3) of the Act provides that the powers conferred on a Board of 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. So according to this section if any case is committed to the court of Session the said Court is authorised to exercise powers conferred on the Juvenile Court. Section 32 provides that the Juvenile Court has power to determine the age of a person produced before it, as being a competent authority to try a case of the juvenile, but under Section 8 of the Act when any Magistrate is not empowered to exercise the powers of a Board or a Juvenile Court is of opinion that a person brought before him is a juvenile, he shall forward the juvenile to the competent authority. This Act contemplates that before forwarding juvenile to the Court of competent autho rity he is entitled to make an inquiry with regard to the person before him whether he is juvenile or not. So it is clear that a Juvenile Court is compe tent authority, but if a person is produced before a Magistrate, who is not a competent authority, he shall forward the person to the Juvenile Court, after holding an inquiry about the age of that person. But the question in this case is whether a case which has been committed to the Court of Session by a Magistrate without making an inquiry under Section 8 of the Act, the age of the accused is to be determined by the court of session or by the Magistrate who committed the case, under Section 8 of the Act or a Juvenile Court under Section 32 of the Act. In this regard the provision of Section 7 (3) of the Act is specific that the Session Court can exercise powers of a Board or of Juvenile Court when a proceeding comes before him. In this regard the provision of Section 7 (3) of the Act is specific that the Session Court can exercise powers of a Board or of Juvenile Court when a proceeding comes before him. So there is no ambiguity that the said Court is also competent to determine the age of the accused. It appears that in the cases referred by learned counsel for the applicants the provision of Section 7 (3) of the Act was neither referred nor discussed and hence divergence of opinion arose in deciding the matter. After going through all the provisions and also all the decisions referred in connection with this matter I am of the opinion that having regard to Section 7 (3) of the Act, there is no scope for referring the matter back to the Court of Magistrate of the Juvenile Court to determine the age of the accused when the case has already been committed to the Court of Session. It will also cause delay into the matter causing harassment to the litigant people. 15. Accordingly, I find that since the learned Sessions Judge has got power to determine the age of the applicants of this case I do not find any reason to interfere with the impugned order of the learned Sessions Judge. Since I do not find any merit in this application, the same is dismissed. Application dismissed. .