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2002 DIGILAW 638 (RAJ)

Chouthi D/o Bhima Ram v. The State of Rajasthan

2002-03-21

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This criminal misc. petition under section. 482 Criminal Penal Code has been filed by the petitioner-accused against the order dated 28.8.2001 passed by learned Additional Sessions Judge, Bali in Sessions Case No. 44/2000 by which the learned Judge dismissed the application filed by the accused-petitioner for treating her to be a juvenile. 2. This misc. petition arises in the following circumstances : (i) A FIR was lodged on 16.9.2000 on the report of Smt. Tija for murder of her husband and after investigation the police filed challan against the present accused-petitioner as well as other accused persons in the Court of Additional Sessions Judge, Bali. Thereafter, on 24.1.2001, an application was filed by the father of present accused-petitioner u/s. 32 of the Juvenile Justice Act, 1986 (hereinafter referred to as `the Act of 1986') stating that the accused-petitioner - Chouthi was near about 16 and 1/2 years of age on the date of occurrence and, therefore, her trial should be held under the provisions of Act of 1986. 3. Through impugned order dated 28.8.2001, the learned Additional Sessions Judge rejected the application filed by the accused-petitioner and he came to conclusion that as per medical report, her age was determined between 17 to 19 years and, therefore, she was above 18 years of age. 4. In this misc. petition, the main submission of the learned counsel for the petitioner is that enquiry as to determination of age as per provisions of Act of 1986 was not conducted by the learned Additional Sessions Judge, therefore, the impugned order dated 28.8.2001 should be set aside. 5. Heard. 6. Section 32 of the Act of 1986 makes it mandatory that an enquiry has to be made in terms of the Code of Criminal Procedure. In the instant case, no evidence was recorded by the Court below for enquiry. The medical evidence as to the age of a person can be utilised with other cogent evidence for determining the proper age of a person produced before the Court. The medical evidence alone is not sufficient for determining the age. 7. In the instant case, no evidence was recorded by the Court below for enquiry. The medical evidence as to the age of a person can be utilised with other cogent evidence for determining the proper age of a person produced before the Court. The medical evidence alone is not sufficient for determining the age. 7. Without going into merits of the case, in my opinion, the learned Additional Sessions Judge has not determined the age of the accused-petitioner by holding enquiry and for that he should have recorded the statements of witnesses and after determining the age of the accused-petitioner, he should have decided the application of the accused-petitioner. Since he has not done so, therefore, the impugned order cannot be sustained. 8. For the reasons mentioned above, this criminal misc. petition under section. 482 Criminal Procedure Code is allowed and the order dated 28.8.2001 passed by the learned Additional Sessions Judge, Bali is set aside and the matter is remanded back to the trial Court for holding the enquiry in terms of Section 32 of the Juvenile Justice Act, 1986.Petition allowed. *******