Judgment 1. The present writ application has been filed for quashing the order dated 14-9-1993, passed by the Chief Judicial Magistrate, Patna, in Case No. 462 (M) of 1993, by which he has held that the petitioner was not juvenile, as defined under Section 2(h) of the Juvenile Justice Act (hereinafter referred to as the Act), as he has above 16 years of age on the date of occurrence. 2. Shorn of all the details the facts necessary for disposal of the present application are that the petitioner has been made an accused in a case under Section 302 of the Indian Penal Code on the accusation of having committed the murder of the son of the informant, namely, Binod Kumar, on 3-8-1989, At the stage of trial the petitioner took a plea that he was juvenile within the meaning of the Act at the time of the occurrence and as such his trial should be separated. The trial Court on 9-4-1990, at the time of framing of charges, found that the petitioner by appearance appeared to be like that of a boy (child) and, accordingly, an enquiry regarding the age of the petitioner was essential. He called for a report from the Civil Surgeon, Patna, who submitted a report on 2-5-1990 (Annexure-3), wherein he stated that at the time of examination on 20-4-1990 the age of the petitioner was between 17-18 years. After taking into consideration the aforesaid report of the Civil Surgeon, which was on the record, the trial Court rejected the prayer of the petitioner to treat him as a juvenile within the meaning of the Act and did not separate his trial from the other accused persons under Section 25 of the Act. 3. Against the order rejecting the prayer of the petitioner to treat him as a juvenile he filed Cr. Misc. 3. Against the order rejecting the prayer of the petitioner to treat him as a juvenile he filed Cr. Misc. No. 4612/91 in this Court which was heard by a learned Single Judge, who referred the matter to a Division Bench and the Division Bench, after hearing the parties and taking into consideration the law laid down by the Full Bench of this Court in Krishna Bhagwan v. The State of Bihar, 1989 PLJR 507, set aside the impugned order on the ground that the Trial Court has decided the question only on the basis of the report submitted by the Civil Surgeon and not on the basis of the evidence adduced on behalf of the parties. This Court remitted the matter to the Trial Court to get the question decided as to whether the petitioner was a juvenile or not by a Juvenile Court, if it has been constituted and, if not, then by a Judicial Magistrate, 1st Class, as provided by Section 7 of the Act in accordance with the provisions of Section 32 of the Act, after taking evidence on the point, as laid down in the case of Krishna Bhagwan (supra). After the remand it appears that the parties did not lead any evidence and the Chief Judicial Magistrate, by order dated 4-3-1992 held that the petitioner was not juvenile as defined under Section 2 (h) of the Act. The petitioner challenged the aforesaid order in Cr. W. J. C. No. 156/92 and a Division Bench of this Court to which one of us (Nagendra Rai, J.) was a party, heard the matter and set aside the aforesaid order and directed the Chief Judicial Magistrate to give an opportunity to the parties to addue evidence and decide the question in controversy within a period of three months from the date of receipt of the order. 4. Before the Chief Judicial Magistrate the petitioner examined three witnesses, namely, his father, Chaukidar Lal Das Paswan and a clerk of Sauragpur Uchya Vidyalaya. The petitioner also produced the entry made in the School Admission Register and the School Leaving Certificate in support of his age. The petitioner also produced the report of the Civil Surgeon-cum-Chief Medical Officer, Patna, dated 2-5-1990. The prosecution neither adduced any evidence nor took any interest at the argument stage. The petitioner also produced the entry made in the School Admission Register and the School Leaving Certificate in support of his age. The petitioner also produced the report of the Civil Surgeon-cum-Chief Medical Officer, Patna, dated 2-5-1990. The prosecution neither adduced any evidence nor took any interest at the argument stage. Thereafter, by the impugned order dated 14-9-1993, the Chief Judicial Magistrate has rejected the prayer of the petitioner and held that he was not a juvenile on the date of occurrence, i. e. on 3-8-1989. 5. Learned counsel for the petitioner contended that the order passed by the Chief Judicial Magistrate is not in accordance with law, as the learned Magistrate has not considered the evidence and has wrongly held that the petitioner was not juvenile within the meaning of the Act, as defined under Section 2 (h) of the Act. According to him, the three witnesses and the two documents filed by him clearly show that the date of birth of the petitioner was 8-1-1975 and, as such, he was below 16 years on the date of the occurrence. According to the medical report of the Civil Surgeon, based on the report of the Professor and Head of the Department of Radiology, the age of the petitioner was about 17-18 years on the date of the report, i. e. 20-4-1990, and as such, even on the basis of the said report the petitioner was aged 16 years and 3 months on the date of the occurrence, i. e. on 3-8-1989. It is well settled by now that the margin of error in age as ascertained by the radiological examination is two years on either side, and, in that view of the matter, the medical report also supports the assertion made on behalf of the petitioner that he was below 16 years of age on the date of occurrence. 6. Learned counsel for the State, on the other hand, submitted that the Chief Judicial Magistrate having considered the evidence and other materials available on the record came to a definite conclusion that the evidence was not sufficient to hold that the petitioner was a juvenile on the date of occurrence and this Court sitting in writ jurisdiction cannot re-appraise the evidence and decide the question afresh on the basis of the materials on the record. According to him, the finding given by the Judicial Magistrate does not suffer from any infirmity warranting interference by this Court. 7. From the facts stated above, it is clear that in spite of the opportunity having been given by this Court, the prosecution did not adduce any evidence. The petitioner examined three witnesses and filed two documents, i.e., entry made in the School Admission Register and the School Leaving Certificate. The trial Court has heavily relied upon the medical report to hold that the petitioner was not juvenile within the meaning of the Act. A copy of the said medical report has been made Annexure-3 to the writ application and from perusal of the same it appears that the petitioner was examined by the Head of the Department of Radiology of Patna Medical College and on the basis of his finding the Civil Surgeon opined that the age of the petitioner was 17-18 years on the date of the report. 8. The Juvenile Justice Act has been enacted to provide care, protection, treatment etc. of delinquent juveniles and for the adjudication of certain matters relating to, and disposition of delinquent juveniles. The provision has been made for the benefit of the juveniles and when a question arises whether a particular person is juvenile or not, the Court should consider the evidence in such case and if a person is found juvenile then he should not be deprived of the benefit of the provisions of the Act on flimsy and untenable grounds. So far as the report with regard to the age, based on the radiological examination, is concerned, the appex Court in the case of Jaya Mala v. Home Secretary, Govt. of J. & K., 1982 Cr L J 1777 (SC), has held, "however, it is notorious and one can take judicial notice that the margin of error in age as ascertained by radiological examination is two years on either side." In this case the evidence of the father of the petitioner, Chaukidar, the Clerk of the School and the entry made in the School Admission Register and the School Leaving Certificate show that the petitioners date of birth was 1-5-1975 and, as such, he was below 16 years on the date of occurrence. The trial Court rejected the evidence of two witnesses on flimsy and untenable grounds. The trial Court rejected the evidence of two witnesses on flimsy and untenable grounds. No doubt, the father of the petitioner is an interested witness, but his version was supported by two documents namely, entry in the School Admission Register and the School Leaving Certificate, which came into existence much prior to the occurrence and the medical report also supports the materials produced on behalf of the petitioner. As noticed by the Supreme Court, there can be possibility of error of two years on either side, meaning thereby the petitioner may be below 16 years also. Thus, the Chief Judicial Magistrate was not justified in rejecting the claim of the petitioner that i.e was juvenile on the date of occurrence. The medical report as mentioned above, does not in any way falsify the materials produced on behalf of the petitioner. 9. After having given our thoughtful consideration, we are of the view that in this case, in view of the evidence adduced by the petitioner and the medical report, there is no difficulty in coming to the conclusion that the petitioner was a juvenile, as defined under Section 2 (h) of the Act, on the date of occurrence. 10. In the result, the impugned order is set aside and the petitioner is held to be a juvenile, as defined under the Juvenile Justice Act and his trial will be held according to the provision of the said Act. Application is accordingly allowed.