FAKHARUDDIN Vs. STATE OF U.P. AND ANR.

JUDGEMENT

(1.) This petition under Sec. 482 Cr. P.C. is directed against an order dated 5.9.2003 whereby the learned Additional District and Sessions Judge /FTG II, Sultanpur has rejected the application of the petitioner for declaring him juvenile and sending his case to Juvenile Court for enquiry. The petitioner is an accused in Sessions Trial No. 25 of 1997 and is facing trial be-fore Additional District and Sessions Judge/FTC II Sultanpur, under sections 452, 342 and 376 I.P.C. During the course of trial, he made an application, alleging that at the time of occurrence he was only about twelve years old and that his case be sent to Juvenile Court. The learned Additional Sessions Judge referred the matter to A.C.J.M., Court No. 7, a Juvenile Court, who after having held an enquiry, concluded that at the time of occurrence, the petitioner was aged about twelve years five months and was as such a juvenile. On receipt of the finding of the juvenile Magistrate, the learned Trial Court held that the age of the petitioner was to be seen with reference to the date when he made the application or put in appearance and not on the date of commission of the offence. In support of his aforesaid conclusion, he relied on the law laid down in the case of Arnit Das Vs. State of Bihar, 2000 (41) ACC 191 (SC) wherein it have been held that the age has to be determined with reference to date of appearance of the person before the competent authority or the date when he was brought before such authority and not with reference to date of commission of offence by such person. It was in this perspective that the learned Trial Court rejected the application of the petitioner.

(2.) I have heard the learned Counsel for the petitioner and the AGA. True that in the case of Arnit Das Vs. State of Bihar referred to above and relied upon by the Trial Court, the Apex Court has held that in the case of a juvenile his age has to be determined with reference to the date of appearance or the date when he was brought before a competent authority and not with reference to the date of corn' mission of offence, but the Apex Court in this case did not consider the view taken by the three Judges Bench of that Court in the case of Umesh Chandra Vs. State of Rajasthan, 1982 (19) ACC 145 (SC) This matter was agitated in review petition filed in the same case and was referred to the five Judges Bench of the Apex Court which instead of examining the correctness of .the finding passed over the issue observing that it declines to answer this point as it was only of an academic interest. The Apex Court, however, while deciding the review. petition in paragraph-3 of its judgment reported in Arnit Das Vs. State of Bihar, 2001 (43) ACC 841 (SC) observed that the two Judges Bench deciding the Arnit Das case while holding that the crucial date to determine whether an accused is a juvenile or not under the 1986 Act is the date on which the accused first appears in the Court in enquiry proceeding has overlooked the earlier view of three Judges Bench in the case of Umesh Chandra Vs. State of Rajasthan, 1982 (19) ACC 145 (SC) , wherein it had been held that the crucial date in such a case is the date on which the offence was committed and not when the accused first appears before the court in enquiry proceeding. The Apex Court in case of Umesh Chandra (supra) while dealing with the applicability of Rajasthan Children Act, 1970 (Rajasthan Act 16 of 1970) containing similar provisions as in Juvenile Justice Act, 1986 observed as under:

(3.) The Apex Court further observed that "the Act being. a piece of social legislation is meant for the protection of infants who commit criminal offences and, therefore, its provisions should be liberally and meaningfully construed so as to advance the object of the Act".