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2005 DIGILAW 1211 (RAJ)

Mukesh Kumar v. State of Rajasthan

2005-04-25

H.R.PANWAR

body2005
JUDGMENT 1. - The instant criminal revision under Section 397/401 of the Code of Criminal Procedure (for short, "the Code" hereinafter) is directed against the order dated 16.02.2005 passed by the Additional Sessions Judge, Sangaria (for short, "the trial Court" hereinafter) in a case arising out of FIR No.315/2004, Police Station, Sangaria, whereby the application filed by accused-petitioner for determination of his age and forwarding him to Juvenile Justice Board, as the petitioner claims that he had not attended the age of 18 years on the date of alleged commission of crime, came to be dismissed by the trial Court by the impugned order. Aggrieved by the impugned order dated 16.02.2005 passed by the trial Court, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State. I have carefully gone through the impugned order, as also the challan papers. 3. On a Parcha-Bayan of one Satish Vadhwa, an FIR No.315 dated 27.05 2004 was registered at Police Station, Sangaria against the petitioner and others for the offences under Sections, 307, 452, 323, 147, 148 and 149, IPC. It was alleged in the FIR that on 27.05.2004, at about 11.20 p.m., Vishnu and Rajesh sons of Rameshwar, along with accused- petitioner Mukesh and two-three other persons, came to his PCO shop and dragged him out of the shop. Three of them had Gandasis and they inflicted injuries to him. He was rescued by certain persons and thereafter he was taken to hospital. The investigation ensued and the petitioner was arrested at about 5.40 p.m. on 30.05.2004. In the arrest memo, the age of the petitioner has been shown as 18 years. After investigation, the police filed challan against the accused in the Court of the Additional Chief Judicial Magistrate, Sangaria, who, in turn, committed the case to the trial Court. Petitioner moved an application before the trial Court, along with a copy of the marks-sheet of VIII standard of the year 2003, wherein the name of the petitioner has been shown as Mukesh Kumar S/o Shri Purna Ram and his date of birth has been shown as 14.07.1992. Petitioner moved an application before the trial Court, along with a copy of the marks-sheet of VIII standard of the year 2003, wherein the name of the petitioner has been shown as Mukesh Kumar S/o Shri Purna Ram and his date of birth has been shown as 14.07.1992. According to the petitioner, on the date of alleged occurrence, i.e., on 27.05.2004, he had not attended the age of 18 years and, therefore, he is juvenile as defined under Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, "the Act"), The trial Court, relying on the arrest memo, wherein the age of the petitioner has been shown as 18 years, and the fact that after investigation the police filed challan against the petitioner wherein the father's name of the petitioner has been shown as Puran Ram whereas in the marks-sheet of the year 2003, his father's name has been shown as Puma Ram, as also on the basis of its own observation that the petitioner is physically well- built and well-nourished and appears to be major, rejected the application filed by the petitioner. 4. Subsection (1) of Section 49 of the Act pertains to presumption and determination of age and provides that where it appears to a competent authority that person brought before it under any of the provisions of this Act (other 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. Thus, Sub-section (I) of Section 49 of the Act contemplates due inquiry with regard to a person brought before the Court or the authority and for that purpose, the Court is required to take such evidence as may be necessary and further requires recording of the finding whether the person is a juvenile or a child or not, and state his age as nearly as may be. 5. In the instant case, the trial Court neither made due inquiry nor recorded the evidence necessary for determination of the age of the petitioner on the relevant date of the alleged commission of crime. 5. In the instant case, the trial Court neither made due inquiry nor recorded the evidence necessary for determination of the age of the petitioner on the relevant date of the alleged commission of crime. On the contrary, the trial Court based its finding on the basis of its own observation and brushed aside the marks-sheet of 2003 filed by the petitioner on hyper-technical ground that in the marks-sheet, the father's name of the petitioner has been shown as Puma Ram as against Puran Ram shown in the charge- sheet and the memo of arrest Mere little difference in the spelling in the name of petitioner's father as such cannot be a ground to hold that the marks-sheet filed by the petitioner before the trial Court does not belong to him. It is a matter of inquiry and can be ascertained only by recording the evidence, including summoning of the scholar register, admission form etc. and also by recording the evidence of the petitioner, his parents or near relatives, as the case may be. Even in such matters, the person claiming to be juvenile may be directed to be medically examined for ossification test 6. The learned trial Court, in the impugned order, has observed that he had seen the accused in the Court and as per his physical built-up, he appears to be of the age of 18 years. This type of procedure adopted by the trial Court, in my opinion, is not warranted by law because physical built-up and height depends not only on the family but also on the diet etc. Further, mere presuming the age on the basis of mere loots at times are deceptive and cannot furnish the' criteria to determine the age and rather it rum contrary to the provisions of Section 49 of the Act. In Dhire alias Dhruvendra Singh v. State of Rajasthan, 1990 (2) WLN 146, this Court observed that build-up and height of the accused, ignoring the medical evidence and school register, cannot be made basis for determination of the age of the accused. So also, merely because the police has shown the age of the petitioner as 18 years, without there being any inquiry or investigation, the same cannot be conclusive proof regarding the age of the person challenged. 7. So also, merely because the police has shown the age of the petitioner as 18 years, without there being any inquiry or investigation, the same cannot be conclusive proof regarding the age of the person challenged. 7. As per Section 49 of the Act, an inquiry has to be held for determination of age which includes recording of oral evidence with a right to cross-examine the other party. In Balbir Singh v. State of Rajasthan, 1994 CrLJ 2750, this Court summarised the legal position regarding determination of age as under : "(i) For the determination of age, to decide whether an accused is a juvenile or not, an inquiry is a must to be made by the competent authority by giving an opportunity to the parties to adduce oral and documentary evidence and also a right to cross- examine to the opposite party; (ii) The inquiry can be made by a Magistrate if he is empowered to exercise the power of the Board or Juvenile Court, otherwise he will have to forward the accused and the record of the proceeding to the Juvenile Court having jurisdiction over the proceeding. (iii) The High Court or the Court of Sessions can exercise the power of the Board or a Juvenile Court, which also includes an inquiry for determination of age of the accused, when the proceeding comes before them in appeal, revision or otherwise, so after commitment of the case the concerned Court of Session can determine the age of the accused to decide whether he was a juvenile or not?" 8. In this view of the matter, the order impugned cannot be sustained in the eye of law and is liable to be set aside. 9. Consequently, the revision petition is allowed, the impugned order dated 16.02.2005 passed by the trial Court is set aside and the matter is remanded to the Additional Sessions Judge, Sangaria to determine the age of the petitioner by holding an inquiry as contemplated under Section 49 of the Act and determine the age of the petitioner on the relevant date of the alleged crime. The stay petition stands disposed of. *******