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2000 DIGILAW 1309 (PAT)

Rajesh Kumar Upad Hayaya v. State Of Bihar

2000-12-11

S.N.PATHAK

body2000
Judgment 1. This quashing application has been filed seeking setting aside of the order dated 3.4.2000 whereby the petitioners were directed to face trial along with the major accused persons of the case (Complaint Case No. 32 of 1996, Tr. No. 743 of 2000). 2. Petitioners lawyer submitted that the petitioners were minor on the date of occurrence of this case which occurred in the year 1995 and so their case should have been separated and referred to the Juvenile Justice Court instead of directing their trial along with the major accused persons of the case. 3. On perusal of the impugned order, l find that the Court held on the basis of the Matriculation Certificate filed by petitioner no. 1, Rajesh Kumar Upadhayaya, that he was of the age of 16 years, 6 months and 22 days on the date of occurrence and so he was major and not entitled to the benefit under the Juvenile Justice Act, 1986 . So far petitioner no. 2, Brijesh Kumar Upadhyaya is concerned, the court held that on the date of his appearance in the court, he was 18 years, 10 months and 29 days old on the basis of his School Leaving Certificate filed by him. So the court directed the trial of both the petitioners along with other accused persons of the case. 4. However, so far petitioner no. 1, Rajesh Kumar Upadhayaya is concerned, the lower court concerned is perfectly justified. But so far petitioner no. 2, Brijesh Kumar Upadhyaya is concerned, the court has referred to Section 27 of the Code of Criminal Procedure and on the basis of this provision, he has held that this petitioner was major on the date of his appearance in the court. He was accordingly directed to be tried along with other accused persons of the case. In this connection, I am to refer to Section 5 of the Juvenile Justice Act wherein it has been laid down that "Notwithstanding anything contained in the Code of Criminal Procedure, the State Govt. shall by Notification constitute one or more Juvenile Courts". Section 7 of the aforesaid Act has enjoined that "Notwithstanding anything contained in any other law, all persons under the age of 16 years shall be tried by Juvenile Court". shall by Notification constitute one or more Juvenile Courts". Section 7 of the aforesaid Act has enjoined that "Notwithstanding anything contained in any other law, all persons under the age of 16 years shall be tried by Juvenile Court". Sub-section (2) of Section 7 of the Act had laid down further that "Where no Juvenile Court has been constituted, every District Magistrate, Sub Divisional Magistrate or Metropolitan Magistrate or Judicial Magistrate of 1st Class shall be deemed to be the Juvenile Court". 5. So under the provisions of the aforesaid Act juveniles shall be tried by a Juvenile Court and notwithstanding any- thing contained in the Code of Criminal Procedure. Now it has become a settled principle of law that the plea of minority under the Juvenile Justice Act may be taken at any stage of the case, even in appeal and the minority of the concerned offender has to be determined on the date of occurrence and not on the date when he appears before the Court or even though he becomes major during the course of trial. l need not refer to any particular decision of any High Court or the Supreme Court. By various pronouncements different High Courts and the Supreme Court have held that plea of minority is to be determined on the date of occurrence. 6. ln that view of the matter, l am of the considered opinion that so far petitioner no. 2, Brijesh Kumar Upadhyaya is concerned, he did not deserve to be tried along with other accused persons of the case. 7. In the result, this miscellaneous case is partly allowed so far the case of petitioner no. 2, Brijesh Kumar Upadhyaya is concerned and partly dismissed so far petitioner no. 1, Rajesh Kumar Upadhayaya is concerned. The lower court is directed to determine the age of petitioner no. 2 on the date of occurrence and thereafter he shall pass appropriate orders as provided under the Juvenile Justice Act.