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2004 DIGILAW 847 (RAJ)

Munshi Khan v. State of Rajasthan

2004-05-26

SUNIL KUMAR GARG

body2004
Honble GARG, J.–This revision petition under Section 397 Cr.P.C. has been filed by the petitioner on 11.08.2003 claiming himself to be a Juvenile under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as `the Act of 2000) with a prayer that the Order dated 25.06.2003 passed by the learned Addl. Sessions Judge (Fast Track), Parbatsar, District Nagaur by which the application of the accused petitioner filed under Section 49 of the Act of 2000 for the purpose of the determination of age was rejected, be quashed and set aside. (2). It arises in the following circumstances: i) That on 31.01.2002 one Abdul Salam lodged a written report with the Police Station, Parbatsar, District Nagaur about the murder of Sikander and an F.I.R. under Sections 302, 201/34 was chalked out and during investigation the accused petitioner was got arrested on 09.03.2002 and after investigation the Police submitted challan on 30.04.2002 against the accused petitioner treating him to be of 18 years of age and one more other accused Yukub for the offence under Section 302/34 I.P.C. in the court of the A.C.J.M., Parbatsar. Thereafter the case was committed to the court of session. After being commitment charges for the offence under Section 302/34, 201/34 I.P.C. were framed against the present petitioner and one more accused. ii) During trial of sessions case No. 22/2003 (old No. 25/2002), the present accused petitioner Munshi Khan filed an application under Section 49 of the Act of 2000 on 08.01.2003 with a prayer that on the date of incident i.e. on 28.01.2002 he was below the age of 18 years as in Transfer Certificate dated 02.10.2001 issued by Smt. Mangla Devi Sarda Govt. Upper Primary School, Kuchaman Shahar [Nagaur] the date of birth of the accused petitioner was shown as 17.01.1985, hence he should have been treated as juvenile and should have been tried in Juvenile Court and he further made a request that an inquiry in respect of his age be conducted as per provisions of Act of 2000. Upper Primary School, Kuchaman Shahar [Nagaur] the date of birth of the accused petitioner was shown as 17.01.1985, hence he should have been treated as juvenile and should have been tried in Juvenile Court and he further made a request that an inquiry in respect of his age be conducted as per provisions of Act of 2000. iii) That the learned Additional Sessions Judge (Fast Track), Parbatsar, District Nagaur through his order dated 25.06.2003 rejected that application inter alia holding (i) that the original certificate dated 02.10.2001 had not been produced through which the accused petitioner took admission in the 6th Class for the first time on 15.07.1998 but it is not clear that how for the first time he was admitted in the 6th Class and original certificate was not produced, (ii) prior to get admission in by Smt. Mangla Devi Sarda Govt. Upper Primary School, Kuchaman Shahar [Nagaur] it has not been mentioned that in which school, the accused petitioner studied and if studied certificates have not been produced, (iii) that at the time of hearing of the S.B. Criminal Misc. Bail Application No. 3496/2002 by this Court, why not the transfer certificate dated 02.10.2001 issued by Smt. Mangla Devi Sarda Govt. Upper Primary School, Kuchaman Shahar [Nagaur] was produced, therefore, the learned Additional Sessions Judge (Fast Track), Parbatsar (Nagaur) declined to make further inquiry in respect of the age of the accused petitioner. iv) That aggrieved from the order dated 25.06.2003 passed by the learned Additional Sessions Judge (Fast Track), Parbatsar (Nagaur), the accused petitioner has filed this petition and has assailed the impugned order on various grounds and the main ground of the accused petitioner is that since from the Transfer Certificate dated 02.10.2001 issued by Smt. Mangla Devi Sarda Govt. iv) That aggrieved from the order dated 25.06.2003 passed by the learned Additional Sessions Judge (Fast Track), Parbatsar (Nagaur), the accused petitioner has filed this petition and has assailed the impugned order on various grounds and the main ground of the accused petitioner is that since from the Transfer Certificate dated 02.10.2001 issued by Smt. Mangla Devi Sarda Govt. Upper Primary School, Kuchaman Shahar [Nagaur] the date of birth of the accused petitioner was 7.1.1985 and thus on the date of incident i.e. on 28.1.2002 he was below the age of 18 years and that certificate have prima facie established the date of birth of the accused petitioner and since sufficient material was placed before the learned Additional Sessions Judge, it was the bounden duty of the Court to make further inquiry regarding his age and since this step was not taken by the learned Additional Sessions Judge and in absence of that order dated 25.6.2003 passed by the learned Additional Sessions Judge was per se illegal and without jurisdiction should be set aside. (3). I have heard and perused the challan papers etc. (4). In my considered opinion, the impugned order dated 25.06.2003 passed by the learned Addl. Sessions Judge (Fast Track), Parbatsar (Nagaur) suffers from basic infirmity and against the established provisions of the law and, therefore, it should be set aside because of the following reasons:- I. BURDEN OF PROOF IN JUVENILE MATTERS: The burden of, `proving the age of a delinquent is not on juvenile delinquent and it is for the Court to hold an inquiry into the age to find out whether such a person would be a delinquent juvenile for the purpose of the Act of 2000. Therefore, the approach of the learned Sessions Judge (Fast Track), Parbatsar (Nagaur) was wrong one and it was the duty of the Court itself to make further inquiry and called for the original record of the school etc. For convenience Section 49 of the Act of 2000 is quoted as under:- ``49. Therefore, the approach of the learned Sessions Judge (Fast Track), Parbatsar (Nagaur) was wrong one and it was the duty of the Court itself to make further inquiry and called for the original record of the school etc. For convenience Section 49 of the Act of 2000 is quoted as under:- ``49. 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 on 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. It may be stated here that this new Section 49 of the Act of 2000 is identical to Section 32 of the old Act of 1986. A bare perusal of the Sub-Section (1) of Section 49 of the Act of 2000 reveals that an inquiry has to be held for determination of age which includes recording or oral evidence with a right to cross- examination the other party. It is so often seen that a plea is not taken by an accused at the initial stage of his being a juvenile. Apart from this, when a question is raised before any Court that the accused is or was a juvenile that Court has to itself hold an inquiry to be satisfied prima facie, that the person concerned is or was a juvenile on the date of occurrence. Apart from this, when a question is raised before any Court that the accused is or was a juvenile that Court has to itself hold an inquiry to be satisfied prima facie, that the person concerned is or was a juvenile on the date of occurrence. Thus, it can be concluded that because of the Section 49 of the Act of 2000 when a person is brought before the competent authority and if there is an application about the determination of the age of alleged juvenile concerned, an inquiry shall be made as to the age of that person and for that purpose the competent authority shall take such evidence as may be necessary and shall record positive finding whether the person is a juvenile or not, stating his age as nearly as may be. Thus, it can be held that this duty is cast upon the Court to make due inquiry and it cannot be brushed aside without any such inquiry. Since, in the present case, inquiry as envisaged under Section 49(1) of the Act of 2000 has not been made by the learned Additional Sessions Judge, therefore, the impugned order dated 25.6.2003 suffers from basic infirmity and illegality hence cannot be sustained. II. PLEA OF MINORITY, WHEN IT CAN BE TAKEN?.- It has become a settled principle of law that the plea of minority under the Juvenile Justice Act, 2000 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 through he becomes major during the course of trial. When this being the position of law, the findings of the learned Additional Sessions Judge are erroneous one on the point that the plea about the age had not been taken by the accused petitioner at the time when his Bail Application was being heard by this Court. From that point of view also the impugned order cannot be sustained. III. From that point of view also the impugned order cannot be sustained. III. That through the application dated 08.01.2003 filed by the accused petitioner under Section 49 of the Act of 2000, the prayer of the accused petitioner was not that he should have been treated as a juvenile and should have been tried before a Juvenile Court but it was prayed that an inquiry be got conducted as per the provisions of Section 49 of the Act of 2000 to ascertain his age. Since, the learned Addl. Sessions Judge had decided that application without holding any inquiry and recording evidence and, therefore, the impugned order dated 25.6.2003 cannot be sustained. IV. Apart from that the learned Additional Sessions Judge has rejected that Transfer Certificate dated 02.10.2001 issued by the Headmaster, Smt. Mangla Devi Sarda Govt. Upper Primary School, Kuchaman Shahar (Nagaur) on some whimsical grounds, actually in that Transfer Certificate, there is also a mention of the fact that the accused petitioner sought admission in 6th Class through an application dated 15.07.1998 and the Admission No. 3269 is also mentioned in that Transfer Certificate, therefore, since it was the duty of the Court to determine the age and if there was any doubt in the mind of the Court about the genuineness of the Certificate the Court must itself remove that doubt after calling of the original record from the school as it was the duty of the Court to get it verified. Since, the learned Additional Sessions Judge had not called for the original record from the school or had not called for the person by whom the transfer certificate was issued, therefore, the learned Trial Court failed in discharging his obligatory duties. From that point of view also the impugned order cannot be sustained. For the reasons mentioned above, this revision petition filed by the accused petitioner Munshi Khan is allowed and the impugned order dated 25.6.2003 passed by the Additional Sessions Judge (Fast Track), Parbatsar (Nagaur) is quashed and set aside and the matter is remanded back, and the learned Additional Sessions Judge is directed to make fresh inquiry in respect of determining the age of the accused petitioner as envisaged under Section 49 of the Act of 2000 including recording of the statements of the witnesses and if necessary calling for the record. It is further directed that if the learned Additional Sessions Judge comes to the conclusion after holding an inquiry that the accused petitioner was below the age of 18 years on the date of occurrence, he should pass proper order so that accused petitioner may face trial in the concerned Juvenile Court.