MOHD GUFRAN Vs. STATE OF U P

JUDGEMENT

(1.) DR. R. R. Misra, J. Notice of this revision has already been served on the State Counsel.

(2.) LEARNED counsel for the parties have been heard. In a case pending before the Court of IX Addl. Sessions Judge, Moradabad against the two accused persons a claim was raised to Mohd. Gufran, accused-applicant, that he is below 16 years and, therefore, he should be sent for trial before the Juvenile Judge concerned. Vide order dated 15-3-1990 the trial court directed the said accused to file his School Certificate of having passed Vth Standard. On the next date an application was moved for summoning the record of Junior High School Timardassari Sambhal. During the pendency of the said inquiry, an application, and 9-B, was also moved which has been disposed of by the IX Additional Sessions Judge, Moradabad by the impugned order dated 20-3-90. By the said order, learned trial court has placed reliance on the provision of Section 63 of the U. P. Children Act 1961 and has passed an order that the trial of the two accused parsons including Mohd. Gufran applicant will proceed together and accused Mohd. Gufran may produce evidence of his age at the stage of defence for getting the benefit of the provision of the U. P. Children Act. On these facts, the contention raised by the learned counsel for the applicant Sri G. C. Saxena Advocate, is that the trial of the applicant along-with the other accused, who is a major, cannot proceed under the law. In support of this submission he has relied on decision of this Court in the case of Guddu alias Pradyamnu Kumar Singh v. State of U. P. , 1990 U. P. Cri minal Law Reports 38 : 1939 JIC 414. The said case is, however, distinguish able inasmuch as in the aforesaid case of Guddu (supra) the date of birth of Guddu was 5-4-70 oil the date of incident. He was admittedly less than 16 years of age. Hence it was held that Guddu was juvenile and the charges have to be separately framed in his case against the juvenile and non-juvenile and the two accused in that case had to be tried separately. That situation is, however, not present in the present case inasmuch as only a claim has been raised in the present case that Gufran accused is under 16 years of age and an enquiry in regard to the same is still pending. Unless a finding is recorded by the trial court that Mohd. Gufran accused is below 16 years of age, the present applicant Mohd. Gufran cannot get any benefit from the aforesaid case of Guddu (supra) cited on behalf of the applicant. The sole submission, therefore, made on behalf of the applicant fails.