CHANDRA PAL Vs. STATE

JUDGEMENT

(1.) THIS application has been preferred by the applicant Chandrapal with a prayer to set aside the order dated 23.2.2011 passed by learned Addl. Sessions Judge/FTC-3, Badaun in case No. 1 of 2011 (S.T. No. 536 of 2010) under sections 376, 506 IPC whereby the application filed by the applicant to declare him juvenile has been rejected.

(2.) THE facts in brief of this case are that the applicant Chandrapal has been named in FIR lodged by the O.P. No. 2 Smt. Subhadra on 2.10.2009 at 11.00 A.M. at P.S. Gunnaur/Rajpura, District Badaun in case crime No. 768 of 2009 under sections 376, 506 IPC. The allegation against the applicant is that he committed the rape with Km. Omwati aged about 14 years, at pistol point on 28.9.2009 at about 7.00 P.M. After investigation the chargesheet has been submitted against the applicant for the offence punishable under sections 376, 506 IPC on which the learned Magistrate has taken the cognizance. Thereafter the case has been committed to the court of sessions, it was pending in the court of learned Addl. Sessions Judge/FTC-3, Badaun vide S.T. No. 536 of 2010. During pendency of the above mentioned sessions trial the application was moved by the applicant claiming himself to be juvenile with a prayer that he may be declared juvenile, thereafter the trial court hold an inquiry to record his opinion with regard to the claim of the applicant. In inquiry the statement of father of the applicant namely Rajendra was recorded as C.W. 1, the statement of Mahendra Pal Sharma and the statement of the applicant Chandrapal were recorded as C.W. 2 and C.W. 3 respectively, the statement of Dr. Sher Singh Kakkar was recorded as C.W. 4, the statement of Dr. G.B. Lal was recorded as C.W. 5, The statement of Dr. M.K. Singh, C.M.O. Badaun was recorded as C.W. 6. After holding inquiry the trial court has come to the conclusion that applicant was appearing aged about 22 years and on the day of the alleged incident also the applicant was aged about 20 years. Therefore, the application filed by the applicant was rejected on 23.2.2011. Being aggrieved from the order dated 23.2.2011 the applicant has filed the present application under section 482 Cr.P.C.

(3.) IT is contended by learned counsel for the applicant that the alleged occurrence has taken place on 28.9.2009. On the day of the alleged occurrence the applicant was aged about 15 years, the applicant is uneducated person. The plea of the juvenile has been taken by the applicant in the trial court on 15.3.2010 by filing the application along with affidavit of Rajendra, the father of the applicant. In support of that application the copy of family register has been filed showing that the applicant was juvenile on the day of the alleged incident. But the learned trial court itself hold an inquiry about the juvenile conflict whereas Juvenile Justice Board was constituted in Badaun district by notification dated 16.8.2010. In such circumstances, the trial court has committed an error by holding an inquiry itself and by not referring the matter to Juvenile Justice Board, Badaun. The trial court was not having the jurisdiction to decide the issue of juvenile, but without any proper reason and by holding an inquiry trial court has decided this issue by disclosing the opinion that applicant was not juvenile on the day of the alleged incident and the application filed by the applicant was rejected on 23.2.2011. The impugned order dated 23.2.2011 is illegal, the same may be set aside.