Sita Ram v. State of Rajasthan — 1995 DIGILAW 622 (RAJ)

Honble SAXENA, J, - This petition filed under section 482 Cr.P.C. has been preferred against the orders dated 26.11.91 and 3.3.92 passed by the learned Additional Sessions Judge, Raisinghnagar in Sessions Case No. 10/91, State vs. Om Prakash & Ors., whereby he relying on the opinion of the Medical Board to the effect that the age of petitioner Sita Ram on ossification test was found to be 17 to 18 years and ignoring the birth certificate and school leaving certificate issued by the Head Master, Government Secondary School, Shaikhsar, held that the petitioner was not below the age of 16 years on the date of the alleged incident and ordered for proceeding trial against him. (2). In nut-shell the relevant facts necessary for the disposal of this petition are that the alleged incident, which occurred on the night intervening 17th & 18.01.1991, Smt. Mangi Devi and Pusa Ram were murdered, an F.I.R. was lodged and Crime No. 17/91 was registered at Police Station Anopgarh. Petitions Sita Ram was arrested on 11.2.91 and in the arrest memo his age was mentioned as 19 years. After completion of the investigation a challan was filed by the I.O. against the petitioner and three others for the offences under sections 302/34, 120-B and 109 I.P.C. The learned Magistrate committed the case to the court of learned Additional Sessions Judge, Raisinghnagar. On 19.4.1991 the Medical Board after radiological examination of the petitioner opined that his age was between 17 to 18 years, Before the learned trial Judge a certificate dated 14.2.91 issued by the Head Master, Government Secondary School, Shaikhsar as also the true copy of the Scholars register issued by the said Head Master, wherein the date of birth of the petitioner has been mentioned as 25.4.1975, were filed. The learned trial Judge by his order dated 26.11.91 relying on the Medical Boards report held that the age of the petitioner on the date of occurrence was not below 16 years and over ruled the objections raised on behalf of the petitioner in this behalf. He framed charge against him for the offence under sections 120-B, 109 & 302/34 I.P.C. and ordered for recording prosecution evidence. Thereafter the said Presiding Officer was transferred. On 18.2.92, another application was filed on behalf of the petitioner for conducting an enquiry regarding determination of his age. He framed charge against him for the offence under sections 120-B, 109 & 302/34 I.P.C. and ordered for recording prosecution evidence. Thereafter the said Presiding Officer was transferred. On 18.2.92, another application was filed on behalf of the petitioner for conducting an enquiry regarding determination of his age. The learned trial Judge by his order dated 3.3.92 observed that in view of the law laid down by the Apex Court in Bhoop Ram vs. State of U.P. (1), the entries of scholar register should have been preferred to the Medical Boards report regarding age, but since his predecessor- in-office had earlier over-ruled the objection raised on behalf of the petitioner in this behalf, he can not review that order. He, therefore, rejected that application and ordered for proceeding in the trial of the case. Hence this petition. (3). I have heard Shri R.K. Soni, the learned counsel for the petitioner and Shri K.L. Thakur the learned Public Prosecutor at length and carefully perused the record of the lower court. (4). The Juvenile Justice Act, 1986 (in short the Act) has been enacted with a view to provide care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for adjudication of the certain matters relating to disposition of delinquent juveniles. Section 2(h) of the Act proclaims that "juvenile" means a boy who has not attained the age of sixteen years or a girl, who has not attained the age of eighteen years. (5). Section 24 prohibits joint trial of juvenile with a person who is not a juvenile. Sub-section (1) of Section 24 lays down that notwithstanding anything contained in section 223 of the Code of Criminal Procedure or in any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in sub-section (1), have been charged and tried together the court taking cognizance of that offence shall direct separate trials of the juvenile and the other person. Thus, joint trial of a juvenile alongwith other accused is not permissible in law. (6). Section 32 deals with the presumption and determination of age. Thus, joint trial of a juvenile alongwith other accused is not permissible in law. (6). Section 32 deals with the presumption and determination of age. It lays down that where it appears to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be. (7). Now the short controversy involved in the case on hand is as to whether the learned trial Judge has conducted the requisite inquiry under section 32 of the Act and whether the date of birth mentioned in the scholar register/school record shall take precedence over the report given by the Medical Board after conducting radiological examination? (8). A perusal of lower courts file reveals that the learned trial Judge has neither conducted any inquiry as envisaged under section 32 of the Act nor recorded any evidence regarding the age of the petitioner. (9). In Umesh Chandra vs. State of Rajasthan (2), the Apex Court has held that entries in school register and admission form regarding date of birth constitute good proof of age, because those records are maintained in the course of regular official duty, that such entries exist ante litem motam and that such evidence is admissible and reliable under section 35 of the Evidence Act. It has been further held that the age of the accused to be reckoned with under sections 3 & 26 of the Rajasthan Children Act, 1970, with reference to the date of commission of offence and that such an Act being a social legislation, provisions thereof should be liberally construed. It is needless to mention here that provisions of Rajasthan Children Act and the Juvenile Justice Act are almost similar and analogous. (10). In Bhoop Ram vs. State of U.P. (supra), the appellant was tried for the offences under sections 302, 323, 324 & 148 I.P.C. He asserted that on the date of commission of offence his age was below 16 years and as such he was a "child" within the meaning of section 2(4) of U.P. Children Act, 1951. (10). In Bhoop Ram vs. State of U.P. (supra), the appellant was tried for the offences under sections 302, 323, 324 & 148 I.P.C. He asserted that on the date of commission of offence his age was below 16 years and as such he was a "child" within the meaning of section 2(4) of U.P. Children Act, 1951. The Chief Medical Officer, Bareily gave a certificate that as per the radiological examination and physical features the appellant appeared to be of 30 years age on 30.4.87. The offence was alleged to have been committed on 3.10.75. The appellant did not place and material before the Sessions Judge except the school certificate to prove that he had not completed 16 years on the date of commission of the offence. The trial Judge rejected the school certificate produced by the appellant on the ground that it was not unusual that in schools ages were understated by one or two years for future benefits, and relied on the report of the Chief Medical Officer and held that the appellant was not a child. The Apex Court held that there was no valid reason to brush aside the date of birth mentioned in the school register and that the appellant should have been treated as a child within the meaning of section 2(4) of the U.P. Children Act and dealt with section 29 of that Act. (11). In the instant case the petitioner Sita Ram has been charged and tried together alongwith co-accused Om Prakash, Hari Prasad and Tara Chand, who are not juveniles. Thereafter the learned Sessions Judge was duty bound to conduct an inquiry under Section 32 of the Act and after recording the evidence to give a specific finding as to whether the petitioner was a juvenile i.e. a boy below the age of 16 years on the date of the alleged incident or not and if he was found to be juvenile then he ought have ordered for a separate trial of the petitioner in accordance with law. But he failed to comply with the provisions of section 32 of the Act. Therefore, the impugned orders suffer from a serious infirmity, which is tantamount to abuse of the process of the court and as such the impugned orders can not be sustained. (12). But he failed to comply with the provisions of section 32 of the Act. Therefore, the impugned orders suffer from a serious infirmity, which is tantamount to abuse of the process of the court and as such the impugned orders can not be sustained. (12). In the result, this petition is allowed and the orders dated 26.11.91 and 3.3.92, whereby the joint trial of petitioner Sita Ram has been ordered, are hereby set aside. The learned trial Judge is directed to hold an enquiry under Section 32 read with Sec. 7(3) of the Act for the determination of the age of petitioner Sita Ram on the date of the alleged incident and if he is found to be a juvenile i.e. below 16 years of age on that date then he should be tried separately in accordance with law. The record of the lower court be sent back immediately.