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2002 DIGILAW 783 (RAJ)

Surendra Kumar v. State of Rajasthan

2002-04-16

KHEM CHAND SHARMA

body2002
JUDGMENT 1. Heard learned counsel for the parties for final disposal at the admission stage.In a case arising out of FIR No. 140/2001, the police after investigation submitted a charge sheet against the accused including the petitioner before this Court. The case is being tried by the Additional Sessions Judge (Fast Track) No. 2, Kota and till 26.2.2002 the trial court has examined as many as 16 witnesses. 2. During trial, an application was moved on behalf of the petitioner that he being 16 years old, he should be ordered to be tried by the Juvenile Court. 3. After hearing arguments of counsel for both the parties, the learned trial court vide its order dated 26.2.2002 dismissed the said application holding that the age of the petitioner cannot be said to be less than 18 years. Hence this revision petition. 4. It is contended by the counsel for the petitioner that the trial court has failed to appreciate the material and documents available before it and has come to a conclusion that age of the petitioner cannot be said to be less than 18 years merely on surmises and conjectures, and therefore the impugned order is liable to be set aside. 5. Learned counsel contended that in any case an inquiry was required to be held for determination of age, which includes recording of oral evidence with a right to cross examination to the other side. According to him, the age of an accused on the day of occurrence is an important factor, which decides his fate as to whether he was entitled to get the benefit of the provisions of Juvenile Justice Act. 6. The Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter to be referred to as 'the Act') came into force w.e.f. 1.4.2001. Section 2(k) of the Act defines the words 'Juvenile' or 'Child' which means a person who has not completed eighteenth year of the age. Section 6(2) provides that the powers conferred on the Board or under this act may also be exercised by the High Court and the Court of Sessions, when the proceeding comes before them in appeal, revision or otherwise. Section 49 of the Act deals with the presumption and determination of age. Section 6(2) provides that the powers conferred on the Board or under this act may also be exercised by the High Court and the Court of Sessions, when the proceeding comes before them in appeal, revision or otherwise. Section 49 of the Act deals with the presumption and determination of age. Section 49 of the Act reads as under :Presumption and determination of age.- (1) Where it appears to a competent authority that person brought before It under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a Juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child 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 or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person. Section 54 of the Act reads as under : Procedure in inquiries, appeals and revision proceedings-(1) Save as otherwise expressly provided by this Act, a competent authority while holding any inquiry under any of the provisions of this Act, shall follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1973 (2 of 1974) for trials in summons cases. (2) Save as otherwise expressly provided by or under this Act, the' procedure to be followed in hearing appeals or revision proceedings under this Act shall be, as far as practicable, in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). 7. From a perusal of the provisions of the Act referred to above it becomes clear that a person below the age of 18 years is a juvenile or child. 7. From a perusal of the provisions of the Act referred to above it becomes clear that a person below the age of 18 years is a juvenile or child. Section 49 of the Act empowers the competent authority i.e. the Juvenile Court to hold an inquiry of the age of accused who appears to be a juvenile. However, Section 6(3) empowers the high Court and a Court of Session to exercise all powers conferred on the Board or a juvenile Court by or under the Act when the proceeding comes before them in appeal, revision or otherwise. 8. Under the provisions of the Act, for determination of age, to decide whether an accused is a juvenile or not, an enquiry is must to be made by the competent authority by giving an opportunity to the parties to adduce oral as well as documentary evidence and also a right to cross examine to the opposite party and that such inquiry can be made by a Magistrate if he is empowered to exercise the power of the Board of Juvenile Court, otherwise he will have to forward the accused and the record of the proceedings to the Juvenile Court having jurisdiction over the proceedings. 9. In the present case, it appears that the learned Additional Sessions Judge has not made any inquiry to determine the age of the petitioner in the manner as aforesaid and therefore, the order impugned in this revision petition is not sustainable and deserves to be quashed. 10. In the result, this revision petition is allowed. The order impugned in this petition is quashed and set aside and the trial court, which is competent to make an inquiry, is directed to hold inquiry whether the petitioner is a juvenile or not by giving an opportunity to the parties to adduce oral and documentary evidence and also a right to cross examine to the opposite party and thereafter, to proceed further in accordance with law.Revision allowed. *******