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2012 DIGILAW 135 (JK)

Gh. Mohammad Bhat v. State & Ors.

2012-03-30

HASNAIN MASSODI

body2012
1. On 24.8.2008, Shri Mehboob Hamid Dar, his two brothers Mohd. Umar Dar and Mohd. Imran Dar and one Tazakur Majid Lone allegedly attacked and mercilessly beat Shri Farooq Ahmed Bhat S/O Gh. Mohd. Bhat R/O Aloosa, in order to eliminate him and in furtherance of the common object, Mehboob Hamid Dar, stabbed the victim, resulting in his death on spot. The victim was attacked by the accused party as he on the previous day, had reprimanded Shri Mehboob Dar for making indecent overtures/advances to Miss Asmat D/o Bashir Ahmed Bhat, relation of the victim. The occurrence led registration of case FIR 177/2008 at police station Bandipora. 2. The investigation in case FIR No.177/2008 under Sections 148,149,302 RPC culminated in charge sheet presented against Mohammad Umar Dar S/o Abdul Hamid Dar, Mohammad Imran Dar S/o Abdul Hamid Dar (respondents 2 and 3 herein). Mehboob Hamid Dar S/o Abdul Hamid Dar and Tazakur Majid Lone S/o Abdul Majid Lone, all residents of Lakhipura, Aloosa, Bandipora, presented in the Court of Chief Judicial Magistrate, Bandipora on 20.11.2008. The case was committed to the Court of Sessions, Bandipora in terms of Section 205-G of Cr.PC on the day of presentation of charge sheet/challan itself. 3. The accused Mohammad Umar Dar and Mohammad Imran Dar (respondents 2 and 3) on 18.12.2008 filed an application before learned Sessions Judge, Bandipora stating therein that as they were juveniles within the meaning of the Jammu and Kashmir Juvenile Justice Act, 1997 (herein after called the Act), they were to be tried separately in terms of the Act. 4. The trial Court without dealing with the aforesaid application, vide order dated 28.05.2009 formally charge sheeted the accused including the accused- respondents 2 and 3 of the offences punishable under Sections 148,149,302,109 RPC. The accused denied the charge and claimed to be tried. The prosecution was, therefore, asked to adduce evidence in support of the charge. The trial Court on 16.06.2009 at the instance of the accused- respondents 2 and 3 asked Shafiq Ahmed - Sub Inspector No.7841 NGO to produce Docket dated 08.10.2008, addressed to Medical Officer, Sub Divisional Hospital(SDH), Bandipora for verifica tion of age of the accused- respondents 2 and 3 and the original certificate issued by the team of Doctors, that according to the accused- respondents 2 and 3 had been withheld by the Investigating Officer. The Docket and Medical certificate were accordingly produced before the Trial Court. On 10.06.2008, the Trial Court taking note of the Inquiry as regards juvenility of the accused- respondents 2 and 3, decided to stay the proceedings in the main trial. The Trial Court on 20.04.2009 relying on law laid down in AIR 1998 SC 236 took the view that inquiry as regards age/juvenility of the accused- respondents 2 and 3 on the date of commission of alleged offence was required to be conducted and asked the parties to adduce evidence in support of their respective stands. However, on 27.10.2010, taking note of the judgment reported as 2009 (2) Crimes 26 (J&K) as also on conjoint reading of different provisions of the Act, the Trial Court took the view that inquiry was to be conducted by the Magistrate (Chief Judicial Magistrate, Bandipora in present case) before whom the Charge sheet was presented and had committed the case. The trial court accordingly transferred the inquiry to CJM, Bandipora with the request to conduct the inquiry as regards the age of accused- respondents 2 and 3 and the plea of juvenility put forth on their behalf. 5. Learned CJM, Bandipora after conducting the inquiry, vide order dated 05.02.2011, declared the accused- respondents 2 and 3 to have been below 16 years of age on date of alleged occurrence and to be juveniles within the meaning of the Act. Learned CJM, Bandipora placed reliance on Medical Certificate and the statement of Doctors namely Dr. Ajaz Ahmed, Dental Surgeon, Shah Nawaz, Dental Surgeon and Dr. Mohammad Zaffar, Assistant Surgeon all posted at SDH, Bandipora, recorded by the Trial Court (Sessions Court) before the inquiry was transferred to the Chief Judicial Magistrate. Reliance was also placed on statements of Mst. Farida, mother of the accused- respondents 2 and 3. Learned CJM noticed that at the time of the presentation of the charge sheet the certificate of Higher Secondary Institute, Aloosa was annexed with the charge sheet wherein the date of birth of the accused- respondents 2 and 3 was recorded as 11.05.1988 and 02.02.1990 respectively. The CJM, Bandipora recorded the statement of Abdul Ahad Incharge Records, Higher Secondary, Institute, Aloosa and Mr. Shahbad Zargar of Government Primary School, Aloosa. The CJM, Bandipora recorded the statement of Abdul Ahad Incharge Records, Higher Secondary, Institute, Aloosa and Mr. Shahbad Zargar of Government Primary School, Aloosa. The statements made by the two officials revealed that the accused- respondents 2 and 3, were admitted in 1st Primary Class in Government Primary School, Aloosa on 18.02.1994 under Admission No.492 and on 01.03.1996 under Admission no.584 in first respectively. Their date of birth at the time of admission were recorded as 01.05.1988 and 02.02.1990 in the School they first attended. The accused- respondents 2 and 3 continued their studies upto 6th class and were discharged from the said school from 08.12.1998 and 27.11.2000 respectively after they passed 5th Primary and sought admission in Higher Secondary Institute, Aloosa. The discharge certificate issued by the Government Primary School, Aloosa, recorded their date of birth asOl.05.1988 and 02.02.1990 respectively and same was recorded at the time of their admission in 6th class in Government Higher Secondary Institute, Aloosa. Both the Accused passed their 8th class examination and were on the rolls of Government Higher Secondary School, Aloosa from 6th class to 9th class. However, CJM, Bandipora ignoring the school record duly proved by the Record Keepers of the two schools, placed reliance on the Medical Certificates and declared the accused- respondents 2 and 3 to have been below 16 years of age on the date of occurrence opining that when two views are possible, one that favours the accused, is to be acted upon. 6. The complainant/aggrieved questioned the outcome of inquiry reflected in the order of CJM, Bandipora dated 05.02.2011, in a criminal revision before this Court. The revision was, vide order dated 29.04.2011 held not maintainable. This Court took the view that as the findings recorded by the CJM, Bandipora were yet to be taken into consideration by the learned Sessions Judge, Bandipora (Trial Court) and that the Trial Court had yet to take decision on the inquiry report, the revision is not maintainable in terms of Section 435 Cr.PC. 7. The Trial Court on 09.07.2011 accepted the report submitted by the learned CJM, Bandipora, declaring the accused-respondents 2 and 3, juveniles within the meaning of the Act and directed the prosecution to segregate their case from that of other accused and present a separate charge sheet against the accused- respondents 2 and 3. 8. 7. The Trial Court on 09.07.2011 accepted the report submitted by the learned CJM, Bandipora, declaring the accused-respondents 2 and 3, juveniles within the meaning of the Act and directed the prosecution to segregate their case from that of other accused and present a separate charge sheet against the accused- respondents 2 and 3. 8. The complainant/aggrieved questions the order of Trial Court dated 09.07.2011 in the present Criminal Revision on the grounds that the accused-respondents 2 and 3, as per the school record were more than 18 years of age on the date of occurrence and thus, not entitled to be declared as juvenile and extended the benefit available to a juvenile under the Act. It is pleaded that in presence of cogent and convincing school record, the learned CJM, Bandipora ought not to have relied upon Medical opinion and that too when the accused- respondents 2 and 3 were not subjected to any Radiological examination/ossification test that would lend credibility to the Medical report. The learned CJM, it is insisted, lacked jurisdiction to rely on medical opinion and give a margin of two years on the ground that the medical opinion was not accepted to be exact and accurate. It is insisted that the accused- respondents 2 and 3 who were at the time of occurrence major/more than 18 years of age, committed heinous offence punishable under Section 302 RPC in a conscious and pre-mediated manner. The petitioner seeks quashment of Trial Court order dated 09.07.2011 and also the order of learned CJM, Bandipora dated 05.02.2011 and a direction to Trial Court to try the accused-respondents 2 and 3 along with other accused. 9. I have gone through the petition as also the record received from the Sessions Court and the Court of CJM, Bandipora. 10. I have heard learned counsel for the parties. 11. The question as regards juvenility of the accused is to be determined by the "Competent Authority'" in terms of Section 32 of the Act. Section 2 (d) of the Act, defines the "Competent Authority" as Juvenile Court or where no such Juvenile Court has been constituted to include any Court empowering sub Section 2 of Section 7 to exercise powers conferred on Juvenile Court. Section 2 (d) of the Act, defines the "Competent Authority" as Juvenile Court or where no such Juvenile Court has been constituted to include any Court empowering sub Section 2 of Section 7 to exercise powers conferred on Juvenile Court. Sub Section 2 of Section 7 provides that where Juvenile court has not been constituted for an area, the powers of Juvenile Court shall be exercised by the District Magistrate or Sub Divisional Magistrate or any Judicial Magistrate of 1st Class. The State Government has yet to constitute Juvenile Courts in terms of Section 5 of the Act. Resultantly, the powers of the Juvenile Court including the power under Section 32 of the Act, are to be exercised amongst others by the Judicial Magistrate of 1st Class of the area. There is thus, no scope for any disagreement between the parties that CJM Bandipora was competent and had jurisdiction to make inquiry as to the age of the accused-respondents 2 and 3 in terms of Section 32 read with Section 2 (d) and 7 (2) of the Act. Let us see, whether the Chief Judicial Magistrate Bandipora has conducted inquiry in accordance with the provisions of the Act and the rules made thereunder. Attention must in the first place go to Rule 21 (5) of the Jammu and Kashmir Juvenile Justice Rules, 2007 (hereinafter called the Rules) notified vide SRO 128 dated 11.04.2007. Rules 21 (5) catalogues the documentary evidence that the competent authority shall look into while dealing with the question of age or juvenility of a person brought before it. It would be advantageous to extract herein rule 21(5) of the Rules: "21. Rules 21 (5) catalogues the documentary evidence that the competent authority shall look into while dealing with the question of age or juvenility of a person brought before it. It would be advantageous to extract herein rule 21(5) of the Rules: "21. Procedure to be followed by a board in holding enquiries and the determination of age: (5) In every case concerning a juvenile, the board shall either obtain :- i) a birth certificate given by a corporation or a municipal authority; or ii) a date of birth certificate from the school first attended; or iii) matriculation or equivalent certificate if available, and iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age; and, when passing orders in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age." A bare look at the afore-quoted rule reveals that the competent authority has to fall back upon the medical opinion only when the date of birth certificate issued by the corporation or a municipal authority; or a date of birth certificate from the school first attended ; or matriculation or equivalent certificate, is not available. Where the documentary evidence, in the order set out in rule 21 (5) (i) (iii) is available to the competent authority, the competent authority has to determine the age on the basis of such documentary evidence without shifting focus to the medical evidence mentioned para-4 in the sub rule. In other words, where the date of birth certificate issued by the corporation or municipal authority is placed before the competent authority, it need not go to date of birth certificate from the school first attended or matriculation or equivalent certificate. Similarly where the date of birth certificate issued by the corporation or the municipal authority is not available but the school certificate from the school first attended is available, the competent authority is to rely on such certificate without insisting on matriculation certificate and so on and so forth. Similarly where the date of birth certificate issued by the corporation or the municipal authority is not available but the school certificate from the school first attended is available, the competent authority is to rely on such certificate without insisting on matriculation certificate and so on and so forth. In the present case, the learned CJM, Bandipora had available before him the date of birth certificates from the school first attended by the accused- respondents 2 and 3. The CJM, Bandipora instead of relying on the date of birth certificates so available, proceeded further to consider the medical opinion and finally gave credence to the medical opinion, brushing aside and ignoring the date of birth certificates from the school first attended by the accused-respondents 2 and 3. It is very important to note that CJM, Bandipora did not at any point of time voice any doubt regarding the credibility of date of birth certificates from the school first attended by the accused- respondents 2 and 3. The court rather relied on the date of birth certificate from the school first attended and the second school, as the certificates were duly proved by two officers i.e. the school first attended and second school, whose depositions were tested at the anvil of cross examination. It would be profitable to reproduce the following observations from the order of Learned CJM, Bandipora dated 5-2-2011, which read : ".. As per the date of birth certificate, both these accused persons are more than 16 years of age as on the date of occurrence. On the one hand, at the time of presentation of the challan, the Investigation Agency has perused the certificate of date of birth issued from the Government Hr. Secondary Institute, Aloosa, Bandipora to substantiate the fact that the accused were more than 16 years of age at time of occurrence. This certificate has been proved by the witnesses whose statements have been recorded as detailed hereto above. Whileas on the other hand, during the investigation, the Police had referred both these accused for medical examination to Chief Medical Officer, Bandipora and the Chief Medical Officer, Bandipora has constituted a team of doctors to examine these accused persons. The medical board after examination of the accused has given their report. As per the report, the age of Mohd. Umar Dar has been shown as 13 years as on 8-10-2008. The medical board after examination of the accused has given their report. As per the report, the age of Mohd. Umar Dar has been shown as 13 years as on 8-10-2008. The date of occurrence in this case is 24-8-2008. When the age determined by the medical board through team of doctors is calculated viz a viz, both the accused are below 16 years of age as on the date of occurrence..". 12. The learned CJM, Bandipora to down-play the importance of date of birth certificates from the school first attended by the accused- respondents 2 and 3, observed that: "Coming to the present case, the opinion of the medical board is that the accused were below 16 years of age as on the date of occurrence whereas the school certificate is that they were more than 16 years of age as on the date of occurrence. In case of school certificate the court can easily take the judicial note of the fact that at the time of admission of a child in 1st Primary or Nursery, it is the parent or the Guardian of the minor child who admits a child in the School and the schools do not insist on any date of birth certificate in the form of municipal birth certificate or Chowkidar birth certificate etc. The schools especially in villages do admit students on the basis of age as given by their parents/guardians without any proof or authentication. The guidelines of the Education Department before some time were, to admit a student in 1st Primary after his completion of six years of age. Now the guidelines have been changed and the students can be admitted in 1st Primary having completing 4 + age. It is however, important to note that entry in regard to date of birth, a student recorded in admission register must be proved to have been recorded at the instance of a person who was the guardian of the student.." 13. The enquiry was concluded by holding that: "1. On the basis of material available on record two views are possible. If the opinion of the medical board is taking into consideration, the accused are below 16 years of age on the date of occurrence. On the other hand, if the school record is taking into consideration the accused are more than 16 years of age on the date of occurrence. 2. If the opinion of the medical board is taking into consideration, the accused are below 16 years of age on the date of occurrence. On the other hand, if the school record is taking into consideration the accused are more than 16 years of age on the date of occurrence. 2. Out of the two views, the view which favours the accused is the view of medical board wherein they have been held to be of less than 16 years of age as on the date of occurrence. In light of the discussion hereto above, the court is to rely on the view favourable to the accused.." 14. Looking at the discussion made and conclusion drawn by the learned CJM, Bandipora in his order dated 5.2.2011 against the backdrop of mandate of rule 21(5) of the Rules, it is abundantly clear that the learned CJM has fallen in grave error while brushing aside the date of birth certificates issued by the school, the accused - respondents 2 and 3 first attended as also the date of birth certificates issued by the school, the accused- respondents 2 and 3, attended thereafter and proceeded to rely on the statements of the doctors, recorded by the learned Sessions Judge, Bandipora, to declare the accused- respondents 2 and 3 below 18 years of age and juvenile within the meaning of the Act. Once the learned CJM, Bandipora had available with him date of birth certificate of the school first attended by the accused- respondents 2 and 3 that was duly proved by the officer on the basis of record, the learned CJM lacked jurisdiction to look into the medical opinion and nullify the date of birth certificates issued by the school first attended on the basis of medical opinion, erroneously assuming that the date of birth recorded about 18 years back was not recorded at the instance of parents/guardians of the accused-respondents 2 and 3. The order of learned CJM thus, cannot stand legal scrutiny. 15. The order of learned CJM thus, cannot stand legal scrutiny. 15. The learned trial court expected to be alive to the mandate of rule 21(5) of the Rules, ought not to have relied upon the enquiry report submitted by the CJM, Bandipora dated 5.2.2011, and taking note of documentary evidence in shape of date of birth certificates issued by the school first attended by the accused- respondents 2 and 3, should have declined the prayer for treating the accused- respondents 2 and 3 as Juvenile within the meaning of the Act, segregation of the charge sheet and their separate trial. The order of learned Sessions Judge, Bandipora dated 9.7.2011 being passed on the enquiry report of learned CJM, Bandipora held to be in conflict with mandate of rule 21(5) of the Rules and without jurisdiction, is also liable to be set aside. While holding so, I draw support from law laid down by this Court in Rouf Ahmed and Others v. State and Others, 2011 (2) JKJ HC-8 and also law laid down in Shah Nawaz v. State of U.P and another, AIR 2011 SC 3107 . In Rouf Ahmed's case, Court observed : "12. Rule 21(5) provides for the documents which are the to be considered in the first instance for ascertainment of age of a person who claims to be declared as Juvenile under the Act of 1997. It is only these documents are not available, then the person can be referred for ascertainment of age to be Medical Board. In this case, the school record was available with the learned Trial Judge. The Trial Judge did not accept the same for the reason that there were some discrepancy noticed in the school records. Rule 21(5) (iv) provides that in absence of (i) to (iii) above, the medical opinion by a duly constituted medical board subject to a margin of one year, in deserving cases for the reasons to be recorded by such medical board, regarding his age is to be considered. The orders in such case are to be passed, after taking into consideration such evidence as may be available or the medical opinion, as the case may be. 13. In this case no medical board was constituted in accordance with mandate of statue. The reliance placed on the medical opinion thus cannot be said to be in consonance with the rule 21 of Rules 2007." 16. 13. In this case no medical board was constituted in accordance with mandate of statue. The reliance placed on the medical opinion thus cannot be said to be in consonance with the rule 21 of Rules 2007." 16. In Shah Nawaz's case (supra), the Supreme Court after taking note of rule 12 of Juvenile Justice (Care and Protection of Children ) Rules 2007 (parimeteria with rule 21(5)} and reviewing the case law on the subject observed : "We are also satisfied that Rule 12 of the Rules which was brought in pursuance of the Act describes four categories of evidence which have been provided in which preference has been given to school certificate over the medical report." 17. It needs to be noted that the medical opinion relied upon by the learned CJM, Bandipora in preference to date of birth certificate issued by the school first attended by the accused- respondents 2 and 3, was not rendered by duly constituted board under the orders of the competent court. The Investigation Officer during the investigation appears to have nursed a suspicion as regards age of the accused-respondents 2 and'3 and accordingly referred them for medical examination and obtained the medical opinion. Once the Investigation Officer was able to lay hands on date of birth certificates from the school first attended by the accused- respondents 2 and 3 and on perusal of such certificates, found both the accused to have been more than 18 years of age on the date of commission of alleged offence, he did not find it necessary to make use of medical opinion in the face of date of birth certificates of the school first attended by the accused- respondents 2 and 3. In the circumstances, there was no reason to frown upon the decision taken by the Investigation Officer not to append the medical opinion with the charge sheet and instead annex date of birth certificates issued by the school first attended by the accused- respondents 2 and 3 nor could the medical opinion in the circumstances be given preference over the school record. It is pertinent to point out that in some cases, noticed in Shah Nawaj's case, even the marks sheet issued by the school having date of birth recorded on it, has been declared to deserve more credibility as against the medical record. 18. However, it does not clinch the matter. It is pertinent to point out that in some cases, noticed in Shah Nawaj's case, even the marks sheet issued by the school having date of birth recorded on it, has been declared to deserve more credibility as against the medical record. 18. However, it does not clinch the matter. It is argued by learned counsel for accused — respondents 2 and 3 that even if the order of learned CJM Bandipora dated 05.02.2011 is found to be not in accordance with law and the mandate of rule 21(5) of the rules, still it cannot be questioned in the present criminal revision inasmuch as remedy available to the petitioner is an appeal under Section 37 of the Act. The remedy of revision, it is pointed out, even if held to be available to the petitioner as against the order of Sessions Judge, Bandipora, the petitioner cannot make use of revision to assail the order of CJM dated 05.02.2011, in as much as the earlier revision filed by the petitioner against the said order was dismissed. It is argued that the right course for the petitioner was to question the Order of the High Court dated 28.04.2011 in criminal revision no.8/2011 in proper proceedings. The present revision notwithstanding the conclusion arrived at as regards legality of the orders impugned, according to learned counsel for accused — respondents 2 and 3, is bound to fail in as much as the remedy of revision is not available to the petitioner to question the order impugned in the revision. 19. In view of the argument advanced by the learned counsel for accused — respondents 2 and 3, to seek dismissal of the revision petition, it would be appropriate to have closer look on Sections 37 and 38 of the Act. Section 37. "Appeals (1) Subject to the provisions of this section, any person aggrieved by an order made by the competent authority under this Act may, within thirty days from the date of such order, prefer an appeal to the Court of Session: Provided that the Court of Session may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) No appeal shall lie from- (a) Any order of acquittal made by the Juvenile Court in respect of a juvenile alleged to have committed an offence; or (b) any order made by the Board in respect of a finding that a person is not neglected juvenile. (3) No second appeal shall lie from any order of the Court of Session passed in appeal under this section. 38. Revision The High Court may, at any time, either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any competent authority or Court of Session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit: Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard." 20. On conjoint reading of aforesaid two sections, it appears that any person aggrieved with the order of the "Competent Authority" under the Act including the order under section 32, has a right to prefer an appeal against the order before the Court of Sessions. However, the order of the Competent Authority is also revisable by the High Court under Section 38 of the Act on the grounds set out therein. In the present case, the petitioners, if not satisfied with the order dated 5.2.2011, had an option to file an appeal under section 37(1) of the Act before Sessions Court, Bandipora. The petitioner could also assail order dated 5.2.2011 in revision petition though on the restricted question of legality and propriety unlike the appeal where the appellate Court may even re-appreciate evidence to find out whether the conclusion arrived at by the competent authority, is based on such evidence. The petitioner did not file appeal and instead filed a revision registered as Cr. Revision No. 8/2011. The said criminal revision however, was dismissed on the ground that the order of CJM, Bandipora dated 5.2.2011 was interlocutory in character, as the Sessions' Court had yet to take a decision on the report so submitted. The petitioner did not file appeal and instead filed a revision registered as Cr. Revision No. 8/2011. The said criminal revision however, was dismissed on the ground that the order of CJM, Bandipora dated 5.2.2011 was interlocutory in character, as the Sessions' Court had yet to take a decision on the report so submitted. The petitioner was thus left with no other option but to request the Sessions Judge, Bandipora not to act on the report/order dated 5.2.2011 in as much as it ignored the school record and relied on the medical opinion. Such plea, as a matter of fact was made before the learned Sessions Judge, Bandipora, is borne out from the order of Sessions Judge dated 9.7.2011. The arguments put forth, are reproduced in the aforesaid order as under: "On the other hand, Ld Public Prosecutor has argued that the Ld Chief Judicial Magistrate has concluded the inquiry without taking into consideration the evidentiary value of the school admission record where both the petitioners- accused have been shown of the age of more than 16 years and has concluded the report on the basis of medical opinion of the doctors which is not a conclusive proof. He argued that the report formulated by the Ld. Magistrate be rejected holding that the petitioners — accused are of the age of more than 16 years and tried along with other accused for the commission of offences of which they have been already charged." 21. However, the learned Sessions Judge, Bandipora over-ruled the arguments put forth on behalf of the petitioner, holding that the court had no option but to accept the report/order of Chief Judicial Magistrate, Bandipora unless it was questioned in accordance with section 37 of the Act. 22. The question that arises for consideration, is whether the learned Sessions Judge was bound to act on the report/order dated 05.02.2011 made by learned CJM, Bandipora holding the accused — respondents 2 and 3 to have been juvenile on the date of alleged occurrence even where the report on the face of it revealed that it had been made in violation and disregard of mandate of rule 21(5) of the Rules. It is pertinent to point out that the learned Sessions Judge in his order dated 09.07.2011 did not record any disagreement with the case set up by the public prosecutor that the report/order of CJM, Bandipora dated 05.02.2011 did not deserve to be accepted inasmuch as it ignored the date of birth certificate issued by the school first attended by the accused — respondents 2 and 3 and give preference to medical opinion though not conclusive in character. However, the learned Sessions Judge expressed his helplessness in recording agreement with the case set up by the petitioner on the ground that he could not sit over the finding returned by CJM unless the same was challenged under Section 37 of the Act. The learned Sessions Judge failed to appreciate that he proceeded with an inquiry with effect from 13.12.2008 to 27.10.2010 and thereafter, found it appropriate to entrust the inquiry to learned CJM Bandipora, who in turn primarily relied upon material brought on file during the period the inquiry was conducted by the Sessions Judge and concluded the inquiry vide order dated 05.02.2011. The Sessions Judge therefore, retained power to accept or not to accept the conclusion arrived at by the CJM, Bandipora, in the event, the conclusion was found not based on the evidence on record or based on such material that not to be considered in terms of the rules governing the procedure to be followed by the CJM. The learned Judge failed to notice that High Court dismissing Criminal Revision No. 08/2011 on 29-4-2011 opining that the finding of learned Chief Judicial Magistrate are " only in an enquiry" and learned Sessions Judge has yet to take a decision in the matter in terms of High Court order. Learned Sessions was to take his own decision in the matter and was not bound by the report that was palpably not in tune with law. The view taken by the learned Sessions Judge that he was bound by the order of CJM even if the order on the face of it, was tainted with illegality, is grossly erroneous and not legally justifiable. 23. There is no scope of any disagreement with the proposition that the Jammu and Kashmir Juvenile Justice Act, 1997 is a welfare legislation and its provisions must be interpreted to advance and achieve the object of legislation. 23. There is no scope of any disagreement with the proposition that the Jammu and Kashmir Juvenile Justice Act, 1997 is a welfare legislation and its provisions must be interpreted to advance and achieve the object of legislation. However, the law makers in their wisdom, have fixed less than eighteen years, as the age for entitlement to the benefit available to a juvenile under the Act. The baseline is that the child who has yet to attain eighteen years of age, does not have mental capacity to understand the results of the act and cannot be said to have intended the act in the manner such intention can be attributed to the adult person of more than eighteen years of age. However, the Court has no jurisdiction to extend legislatively fixed age in the name liberal or purposive interpretation of the Act. The Court has to show liberal attitude when the person brought before the Court, appears to be juvenile. In such a case, the Court/Competent Authority, is to embark on an inquiry to know the exact age of the person so produced and not deny the benefit without such inquiry, even if he appears a little more than eighteen years of age. But once an inquiry is made in accordance with the Act and the Rules framed there-under and the person or persons so produced found to be more than eighteen years of age, there is no reason to hold such person/persons entitled to the benefit when they cannot be declared as juvenile in terms of Act and the Rules made there-under. We ought to be conscious that behind every prosecution, there is aggrieved person who is himself victim of an offence or who has lost his near or dear one because of the alleged crime. The aggrieved can have no grievance, when he is informed that the alleged perpetrator of the crime is below eighteen years of age and is to be dealt with as juvenile and not sentenced in the manner an adult accused would have to be sentenced. However, once the aggrieved or the victim of an offence knows that the accused is more than the eighteen years of age, he has every reason to be aggrieved, if the accused is treated as juvenile and given the benefit to which he is not entitled under the Act. However, once the aggrieved or the victim of an offence knows that the accused is more than the eighteen years of age, he has every reason to be aggrieved, if the accused is treated as juvenile and given the benefit to which he is not entitled under the Act. Viewed thus, the Court in such eventuality as in the present case has not to have only the accused in mind but also the aggrieved/petitioner who allegedly lost his son of the same age as that of the accused because of the offence allegedly committed by the accused. 24. For the reasons discussed, the order dated 09.07.2011, whereby the learned Sessions Judge has held the accused — respondents 2 and 3, as juvenile within the meaning of the Act and directed segregation of trial for the accused, is set aside. Resultantly, the accused — respondents 2 and 3 namely Mohammad Umer Dar and Mohammad Imran Dar, sons of Abdul Hamid Dar are directed to be tried alongside other accused. The accused — respondents 2 and 3, if let off on bail, shall surrender within one week before the Court of Learned Sessions Judge and be remanded to judicial custody to face the trial. On their failure to surrender before the Sessions Court, the learned Sessions Judge shall issue necessary process so that the accused — respondents 2 and 3 are brought before the Court and thereafter, remanded to judicial custody in accordance with law. The accused — respondents 2 and 3, shall not be precluded for filing an application for bail. In the event such an application is made, it shall be disposed of in accordance with law. Disposed of.