Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 679 (ORI)

Pradip Sarkar v. State of Orissa

2010-09-28

B.K.NAYAK

body2010
ORDER 28.9.2010 — Heard learned counsel for the petitioner, the learned counsel for O.P. No.2 and the learned Addl.Government Advocate for the State-O.P. No.1. Order dated 15.2.2010 passed by the learned J.M.F.C., Umerkote in G.R. Case No.475 of 2009 determining the age of the victim girl has been challenged in this application u/s. 482, Cr.P.C. by the informant, who is the father of the victim girl, on the ground that certain relevant materials and documents were not properly considered by the, learned Magistrate while determining the age of the victim. It appears from the impugned order that the question of determination of age of the victim girl arose before the learned Magistrate as because the informant claimed that the victim was a minor less than 15 years of age and was kidnapped. It was contended before the J.M.F.C. on behalf of the accused persons and even by the victim herself that she was major and the question arose with regard to giving of custody of the victim. The matter having once been challenged earlier before this Court in CRLMC No.3768 of 2009, this Court by order dated 7.1.2010 disposed of the said CRLMC directing the present petitioner to produce certain documents and original birth certificate etc. before the Magistrate for reconsideration of the matter. On reconsideration by the present impugned order, the learned Magistrate has assessed the age of the victim girl. It is unnecessary at this stage to go into the question of propriety and legality of the impugned order with regard to the age of the victim girl inasmuch as such determination has been made by the learned J.M.F.C. only for the limited purpose of considering the question of custody of the victim girl during the pendency of the G.R. case. Since chargesheet has already been filed and cognizance is said to have been taken for the offences u/ss. 366/376, IPC which is triable by the Court of Session, the case is necessary to be committed to the Court of Session whereafter the Sessions Court shall try the offences where the question of age of the victim girl will be a necessary issue. 366/376, IPC which is triable by the Court of Session, the case is necessary to be committed to the Court of Session whereafter the Sessions Court shall try the offences where the question of age of the victim girl will be a necessary issue. Finding of the learned Magistrate with regard to the age of the victim girl by the impugned order will not bind the Sessions Court as because it has to give its finding on that issue on the basis of the evidence to be led before it. In such circumstances, I do not feel necessity of going into the propriety or legality of the present impugned order passed by the learned Magistrate. It is made clear that the issue of age of the victim girl shall be decided on its own merits by the Sessions (Trial) Court during trial on the basis of evidence produced before it without being influenced by the Findings and observations given by the learned J.M.F.C. in the impugned order. The CRLMC is accordingly disposed of. Issue UCC as per rules. CRLMC disposed of.