Judgment 1. Heard learned counsel for the petitioners. State as well as opposite party no. 2. 2. Petitioners are aggrieved with the order dated 15.7.2005 passed by the 4th Addl. Sessions Judge, Samastipur, in Sessions Trial No. 68 of 2004. By the impugned order, earlier order dated 11.2.2005 passed by the 4th Addl. Sessions Judge, Samastipur, allowing the petition filed by the petitioners for holding an enquiry under section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) has been overlooked and without holding an enquiry as provided under section 49 of the Act the petitioner has been asked to participate in the Sessions Trial, as well as charge has also been framed against them alongwith the other accused persons. 3. Tajpur (Waini) P.S. Case No. 163 of 2003 was instituted on 2.7.2003 under sections 147, 148, 448, 323 and 379 of the Indian Penal Code in which petitioners, namely, Shiv Shankar Chaudhary and Subrat Kumar @ Rakesh Kumar were also named as accused. After investigation charge-sheet was submitted and cognizance was taken against the named accused persons. Subsequently, after the charge sheet was submitted, petitioners filed an application before the 4th Addl. Sessions Judge, Samastipur, for split up of the trial and also for transmitting their case to the Juvenile Justice Court for trial. In the petition it was stated that on the date of occurrence Shiv Shankar Chaudhary was aged about 15 years 7 months and 14 days and Subrat Kumar @ Rakesh Kumar was aged about 13 years 1 month and 26 days, as such, they may be declared juvenile and their trial may be transmitted to the Juvenile Justice Court. This application was allowed by order dated 11.2.2005 and the order was passed for holding enquiry by the A.C.J.M., Samastipur, who was heaving power under the Juvenile Justice Act for holding trial. It was also directed that A.C.J.M. would hold enquiry for determining the age of the petitioners and for declaring them as juvenile. Thereafter, the matter was sent to the Court of A.C.J.M., Samastipur, but no such enquiry was conducted. The A.C.J.M., Samastipur, did not hold any enquiry under section 49 of the Act. The matter was still pending for enquiry under the Juvenile Justice Act, when by order dated 15.7.2005 the 4th Addl. Thereafter, the matter was sent to the Court of A.C.J.M., Samastipur, but no such enquiry was conducted. The A.C.J.M., Samastipur, did not hold any enquiry under section 49 of the Act. The matter was still pending for enquiry under the Juvenile Justice Act, when by order dated 15.7.2005 the 4th Addl. Sessions Judge, Samastipur, himself decided that physically both the petitioners did not appear to be juvenile and their case should not be decided by the Juvenile Justice Court. Their prayer for determination of their age was rejected. The 4th Addl. Sessions Judge, Samastipur, also passed order on 29.7.2005 for framing of charge. 4. Learned counsel for the petitioners has submitted that while the matter was pending before the court for determination of petitioners age, by the impugned order charge has also been framed by the 4th Addl. Sessions Judge, Samastipur. 5. The order dated 15.7.2005 passed by the 4th Addl. Sessions Judge, Samastipur, is apparently illegal because once petitioners application was allowed by order dated 11.2.2005 for holding enquiry under section 49 of the Act and the record of the case was sent to the A.C.J.M., Samastipur, for holding enquiry, unless an enquiry would have conducted as provided under the Act, no order should have been passed by the 4th Addl. Sessions Judge, Samastipur, holding that the petitioners are not juveniles and trial should not be held by the Juvenile Justice Court. 6. Section 49 of the Juvenile Justice Act provides that only the competent authority, after holding enquiry can determine the age of an accused and pass order. The competent authority will have to make due inquiry to determine the age of juvenile accused which also includes evidence. Only after holding enquiry the competent Magistrate can record a finding whether the person is a juvenile/child or not. 7. Since in the present case, for determination of the age under section 49 of the Act, neither any enquiry was held nor the Medical Board has determined the age of the petitioners, the order passed by the 4th Addl. Sessions Judge, Samastipur, holding that petitioners are not juvenile is patently illegal. The learned Judge by his order recalled the order dated 11.2.2005 for which he is not competent. Accordingly, the order dated 15.7.2005 passed by the 4th Addl. Sessions Judge, Samastipur, in Sessions Trial No. 68 of 2004 is illegal and fit to be quashed. Sessions Judge, Samastipur, holding that petitioners are not juvenile is patently illegal. The learned Judge by his order recalled the order dated 11.2.2005 for which he is not competent. Accordingly, the order dated 15.7.2005 passed by the 4th Addl. Sessions Judge, Samastipur, in Sessions Trial No. 68 of 2004 is illegal and fit to be quashed. The order framing charge against the petitioners is also quashed. The trial court is directed to proceed with the trial of other accused persons except the petitioners. Their case should be remitted back to the A.C.J.M., Samastipur, for holding enquiry under section 49 of the Juvenile Justice Act as provided under the Act. Only after conclusion of the enquiry and determination of the age of the petitioners, their trial will proceed. 8. With this observation the application is disposed of.