STATE OF GUJARAT Vs. KARAMSHI PUNA

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge Banaskantha District Palanpur recommending that the order of commitment of one Karamshi passed by the Judicial Magistrate First Class Deodar be quashed on the ground that the accused person who was committed to the Sessions Court was a child.

(2.) The learned Sessions Judge referred to the medical certificate wherein it is stated that Karamshi is about 15 to 16 years of age. Under sec. 9 of the Bombay Children Act 1948 where a Juvenile Court has been established for any local area such court shall try all cases in which a child is charged with the commission of an offence and shall deal with and dispose of all other proceedings under this Act but shall not have power to try any case in which an adult is charged with an offence under Part IV of the Act. Therefore if an accused person is a child he cannot be committed to the Sessions Court for trial but his case should be tried by a Juvenile Court. If the accused person is not a child an ordinary Court should try such an accused person and a Juvenile Court has no jurisdiction to try him. Child is defined in the Act as a boy or a girl who has not attained the age of 16 years. In this case the learned Sessions Judge refers to the medical certificate issued by a doctor to hold that Karamshi is a child. Before the court comes to the conclusion that an accused person is a child there must be proper evidence before the Court. A medical certificate is not evidence unless the conditions stated in section 32 Evidence Act apply. If an authority is needed for this proposition it is found in I. L. R. 47 Bombay 74 (Emperor vs. Ahilya) and I. L. R. 1937-2 Calcutta 714 (Ali Anvar vs. Jawa). If the doctor is alive and can be conveniently examined he must be examined and he must give his opinion in his evidence.

(3.) The learned Sessions Judge should therefore record the evidence of the doctor and then give a finding whether the accused person is a child that is under the age of 16 years. The present reference is therefore rejected. Reference Rejected