AQUIL ALVI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This application has been filed challenging the order of the learned Special Judge, Meerut, passed on 27-9-1994 in connection with S.T. No. 566 of 1993. By that order the learned Special Judge initiated proceeding to determine the age of the applicant No. 2. An application on behalf of applicant No. 1 was also filed on 8-3-1993. The contention of both the applicants is that they are minors and their trial cannot be held along with other accused persons in that committal proceedings. By order dated 27-9-1994 the learned Special Judge has disposed of the application of applicant No. 2, stating that under the provisions of Section 7(3) of the Juvenile Justice Act and in view of the decision reported in 1993 AAC 55 case of Mahboob Ahmad v. State of U.P. he has authority to initiate proceeding and he proceeded accordingly to determine the age of applicant No. 2. No order has been enclosed as regards fate of the application of applicant No. 1 filed on 8-3-1993. Since this is a question of jurisdiction about the trial of juvenile and in view of the decision of the Supreme Court in the case of Gopi Nath v. State of West Bengal (AIR 1984 SC 237) : 1984 Cri LJ 168 it was decided that the plea if raised even at the trial before the Court of Sessions or during appeal regarding minority of any accused facing trial it should be disposed of according to the provisions of the Juvenile Justice Act. Taking that view of the matter the contention of the applicants Nos. 1 and 2 are to be taken together and disposed of.

(2.) Learned counsel for the applicants has submitted that under Section 8 an enquiry was to be conducted by the Magistrate prior to commitment of the accused to the Court of Session but the said proceeding was not taken up at that stage, plea has been taken when the case has been committed to the court of Session. Even then the age of the applicants should be determined by the Committing Magistrate under Section 8 of the Juvenile Justice Act. He has referred to the case of Sheo Mangal v. The State of U.P. reported in 1990 U.P. Cr. R 326 wherein it has been held that the Magistrate did not determine the age of Juvenile and committed the case to Sessions Court, the Sessions Judge should send back the case to the court of Magistrate with a direction to proceed afresh keeping in view the provisions of Section 8 of the Act.

(3.) He has also referred the case of Kamlesh Kumar v. State of U.P. reported in 1994 ACC 650 wherein it has been held that Section 8 confers the jurisdiction only on a Magistrate to determine the age of Juvenile delinquents. Sessions Judge has no jurisdiction and is bound to refer the question of age for determination by proper authority. The matter was remanded back to the Magistrate for determination of age. The order of commitment to the Court of Session was set aside.