ORDER 1. Feeling aggrieved by the order dated 1.7.97 passed in Criminal Case No. 45/97 by the learned Judicial Magistrate, First Class, Raipur refusing to accept the prayer of the accused-petitioner to treat him as a juvenile, he has approached this Court for setting aside the same and to issue a further direction to treat him as a juvenile and proceed in accordance with the provisions of the Juvenile Justice Act, 1986 (hereinafter referred to as the' Act'). 2. The facts as have been depicted in the petition are that the petitioner was arrested for an offence under section 302/34 of the Indian Penal Code forming the subject-matter of criminal case No. 45/97 pertaining the police station Amanaka, Raipur on the allegation that in the after noon of 27.2.1997, the petitioner alongwith other co-accused persons assaulted one Dilip who ultimately succumbed to his injuries. On 28.6.1997 an application was filed under section 437 of the Code of Criminal Procedure (in short the 'Code') before the learned Judicial Magistrate, First Class, Raipur for releasing the applicant on bail on the ground that he was below 16 years of age. His birth certificate indicating his date of birth as 12.8.1981 was produced before the learned Magistrate. The birth certificate was issued by the competent authority on 6.6.1997. After the application was filed the learned Magistrate directed for conducting the ossification test of the accused-petitioner for determination of his age. The matter was adjourned from time to time waiting for the report of the ossification test. After receipt of the report, the matter was decided by the impugned order dated 1.7.1997. The learned Magistrate disbelieved the birth certificate on the ground that it was issued on 6.6.1997 after the date of occurrence. The learned Magistrate referred to the ossification test report submitted by the Radiologist who had opined that the age of the accused was between 15 to 16 years and came to hold that after giving margin of two years, it could be held that the accused was more than 16 years on the date of the incident. Being of this view he rejected the prayer of the accused and declined to send the matter for trial by the Juvenile Court. This is the cause of grievance of the present revisionist. 3. Assailing the aforesaid order Mr. Being of this view he rejected the prayer of the accused and declined to send the matter for trial by the Juvenile Court. This is the cause of grievance of the present revisionist. 3. Assailing the aforesaid order Mr. S.L. Kochar, learned counsel for the petitioner has contended that the learned Magistrate has committed gross illegality by deciding the matter without affording an opportunity to the petitioner inasmuch as on 1.7.97 the counsel was not present to address the Court It is his further Submission that the learned Magistrate while rejecting the application for bail has rejected the prayer of the petitioner to treat him as juvenile which was absolutely unwarranted. He has seriously criticised the approach of the Court below in rejecting the birth certificate granted by the competent authority solely on the ground that the same was obtained on 6.6.97 after the date of occurrence. The learned counsel has also emphasised that the ossification test indicated the age of the petitioner between 15 to 16 years but the learned Magistrate taking recourse to the concept of error in such test added 2 years and determined the age to be more than 16 years which is unsustainable inasmuch as the benefit should have been given to the accused, more so, when the birth certificate granted by the competent authority was produced. Combating the aforesaid submission, Mr. Anurag Choudhary, learned Panel Lawyer for the State, has urged with vehemence that the learned Magistrate has correctly ignored the birth certificate as the same was a photocopy and was obtained after the date of occurrence. The learned counsel for the State further contended that it is well settled that in an ossification test there can be a possible error of + 3 years, and therefore, taking this aspect into consideration when the learned Magistrate has rejected the plea of the petitioner, said conclusion cannot be faulted. 4. Before I advert to the controversy in the present case, it is essential to deal with the scheme of the Act. 4. Before I advert to the controversy in the present case, it is essential to deal with the scheme of the Act. The term juvenile which has been defined under section 2 (h) of the Act reads as follows: "Sec. 2(h).- "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." Section 2 (d) which defines 'competent authority' reads as under: "Sec. 2 (d).- "Competent Authority" means in relation to neglect juvenile, a Board and, in relation to delinquent juvenile, a Juvenile Court and where no such Board or Juvenile Court has been constituted, includes any Court empowered under sub-section (2) of section 7 to exercise the powers conferred on a Board or Juvenile Court." Section 2 (i) defines a 'Juvenile Court' meaning thereby a Court constituted under section 5 of the Act. Section 7 of the Act deals with the powers of Board and Juvenile Court. Under the said provision exclusive jurisdiction has been conferred on the Juvenile Court in respect of neglected juvenile or delinquent juvenile. The term 'delinquent juvenile' has been defined under section 2 (e) and it means a juvenile who has been found to have committed an offence. The words used under section 7 have overriding effect. Section 8 of the Act lays down the procedure to be followed by a Magistrate not empowered under the Act. As the said provision is relevant for the present purpose, it is reproduced below: "Sec. 8.-Procedure to be followed by a Magistrate not empowered under the Act. -- (I) When any Magistrate empowered to exercise the powers of a Board or a Juvenile Court under this Act is of opinion that a person brought before him under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, he shall record such opinion and forward the juvenile and the record of the proceeding to the competent authority having jurisdiction over the proceeding. (2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile had originally been brought before it." On analysis of the aforesaid provisions it is plain as day that the Magistrate is required to record an opinion in regard to the age of delinquent juvenile and forward the record of the proceeding to the competent authority having jurisdiction over the matter. The statute mandates that the competent authority is required to hold an enquiry as if the juvenile has been brought originally before it. At this juncture it is necessary to refer to section 32 of the Act which reads as under: Sec. 32.-Presumption and determination of age- (1) 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. (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile, and the age recorded by the competent authority to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person." The aforesaid provisions came up for consideration before this Court in the case of Dhanna @ Kariya v. State of M.P., 1996 (2) MPJR 235. This Court on consideration of the aforesaid provisions laid down as follows :- "Under the Act, if the circumstances exists, firstly, the person brought before Magistrate appears to be child, secondly, he is brought. before him under the provisions of the Act otherwise than for the purpose of leading evidence and lastly when the Magistrate is not empowered, then the Magistrate is required to record his opinion and to forward the child to the competent authority. Sub-section (2) of section 8 of the Act makes it obligatory on the authority to hold an inquiry under section 32 of the Act. Sub-section (2) of section 8 of the Act makes it obligatory on the authority to hold an inquiry under section 32 of the Act. The provisions of section are of vital importance as a duty is cast on the Juvenile Court to decide the age of such accused as such finding would determine whether the proceedings are to be continued under the special provision of the Act in relation to the person brought before the competent authority for the purpose other than for giving evidence or he is to be tried under the general law. The section applies only then the competent authority that the person brought before it is juvenile and finality is attached to such an order, by the Act. Sub-section (I) of section 32 is addressed to the competent authority which makes on it obligatory to make an inquiry as to the age of the person brought before it. Sub-section (2) lays down that after the competent Court has passed an order under the Act in relation to that person after a due enquiry, any subsequent proof that the person is not juvenile would not render the order invalid." Thus, it is apparent that the Magistrate is under an obligation to record an opinion and if he is satisfied that the accused is a deliquent juvenile he would refer the case to the Juvenile Court and thereafter the Juvenile Court shall proceed with the matter in accordance with the section 8 (2) of the Act, and after conducting the inquiry determine the age and such determination shall have the presumption of correctness under section 32 of the Act. 5. The impugned order has to be scrutinised on the backdrop of the aforesaid provisions and the obtaining factual matrix. The learned Magistrate was required to form an opinion as enjoined under section 8 of the Act as he was not the competent authority as defined under section 2 (d) of the Act. If he would have been satisfied prima facie that the accused was a delinquent juvenile he would have forwarded him to the Juvenile Court. As the learned Magistrate determined the age to be more than 16 years, he has in fact recorded an opinion against the accused, and therefore, he has not forwarded the accused to the Juvenile Court. If he would have been satisfied prima facie that the accused was a delinquent juvenile he would have forwarded him to the Juvenile Court. As the learned Magistrate determined the age to be more than 16 years, he has in fact recorded an opinion against the accused, and therefore, he has not forwarded the accused to the Juvenile Court. The question that requires consideration is whether the learned Magistrate was justified in negativing the plea of the accused. In this regard, on a perusal of the impugned order I find that the certificate of birth has been granted by the statutory authority. A photocopy of the certificate granted by the department of Health and Family Welfare of the Govt. of Orissa has been annexed to this revision. Mr. Kochar, learned counsel for the petitioner has submitted that the original birth certificate was produced before the learned Magistrate but it was not accepted by the learned Magistrate on the ground that it was a photocopy. Be that as it may, a document granted by the competent authority was produced before the learned Magistrate. The learned counsel for the State could not state whether the certificate has been obtained from the competent authority or not. True it is, the certificate is dated 6.6.97. It mentions that the date of birth is 12.8.1981. One may obtain a certificate subsequently and that would not make it a fraudulant or non-genuine one. If the certificate is accepted as genuine its evidentiary value cannot be ignored. The approach of the learned Magistrate in this regard is absolutely incorrect. That apart he has opined with regard to the age of the petitioner by giving margin to the ossification test report. There is no quarrel over the proposition that the margin of 3 years has to be given while appreciating the report of a Radiologist But, when the certificate has been brought on record the learned Magistrate should have granted the margin in favour of the delinquent petitioner. 6. Ordinarily I would have remanded the case to the learned Magistrate to form an opinion after appreciating the genuineness of the birth certificate but that would cause unnecessary delay. If the certificate is genuine the formation of the opinion of the learned Magistrate is definitely erroneous. 6. Ordinarily I would have remanded the case to the learned Magistrate to form an opinion after appreciating the genuineness of the birth certificate but that would cause unnecessary delay. If the certificate is genuine the formation of the opinion of the learned Magistrate is definitely erroneous. The margin given by him in the report relating to ossification test cannot outweigh the evidentiary value of the certificate which is maintained by the competent statutory authority. The present factual scenario, in my view, tilts in favour of the accused. Thus I am of the considered view that the opinion formed by the learned Magistrate is incorrect, and he should have forwarded the accused to Juvenile Court for delineation by the said Court. 7. In the prevailing circumstances and factual matrix I am of the considered view that a direction should be issued directing the learned Magistrate to forward the record alongwith the document to the Juvenile Court which shall determine the age of the petitioner as enjoined under section 32 of the Act. While determining the age, the Juvenile Court would keep in view the procedure laid down under the Act and shall decide independently without being influenced by any observations made by this Court. It would be open to the prosecution to challenge the authencity or genuineness of the certificate of birth before the Juvenile Court. 8. In the result, the revision is allowed, the impugned order is set aside and the learned Magistrate is directed to do the needful by sending the record to the Juvenile Court for delineation of the same by the said Court in accordance with law. The Juvenile Court shall dispose of the controversy regarding determination of age as expeditiously as possible.