WAZID HUSAIN Vs. STATE OF U P

JUDGEMENT

(1.) B. K. Sharma, J. Heard Sri G. S. Hajela, learned Counsel for the applicant and the learned A. G. A. None appears for the opposite party No. 2, Mohd. Gufran.

(2.) IN Session Thai No. 921 of 1984, under Section 302/307, I. P. C. the present applicant Wazid Husain was the complainant and present opposite party No. 2 Gufran was accused. The trial was pending before the IXth Additional Sessions Judge, Moradabad. The opposite party No. 2 Mohd. Gufran raised a claim before the Addi tional Sessions Judge, Moradabad, that he is below 16 years and, therefore, he should be sent for trial before the Juvenile Judge concerned. During pendency of the enquiry about the age an application 89-B was also moved by him. By order dated 20-3-1990 the IXth Additional Sessions Judge placed reliance on the provisions of Section 63 of the U. P. Children Act, 1951 and directed that the trial of the two accused persons including Mohd. Gufran aforesaid will proceed together and that accused Mohd. Gufran may produced evidence of his age at the stage of defence for getting the benefit of the provisions of U. P. Children Act, 1951. This order was challenged before this Court in Criminal Revision No. 564 of 1990. It came up for hearing before Hon'ble Dr. R. R. Misra, J. who dismissed the revision by his order dated 18-4-1990. IN that judgment and order he observed that inquiry in regard to the claim of Gufran that he is under 16 years of age is still pending and the finding is to be recorded by the trial court. He further found that as the Juvenile Justice Act, 1986, came into force with effect from 3-12- 1986 and in view of the provision of Section 63 of the Juvenile Justice Act, 1986 regarding repeal, the U. P. Children Act, 1951, relied upon by the trial court is now no longer in existence and the case has to be proceeded with under the provisions of the Juvenile Act, 1986. It is also observed in the judgment that in the impugned order passed by the trial court there is a mention to the effect that evidence regarding the age of Gufran accused, shall be produced at the stage of defence and it was observed that in his opinion it was wholly erroneous in law and is against the legislative mandate and hence, an enquiry has got to be made at this stage regarding the age of the applicant Gufran and in case, it is found that Gufran accused is a juvenile then only at that stage the decision in the case of Guddu alias Pradyaniau Kumar Singh v. State of U. P, 1990 JIC 210 (All) will become applicable. This authority had been cited at that time by the learned Counsel for Mohd. Gufran in support of his submission that his trial alongwith the other accused who is a major cannot proceed under the law. The lower court concerned was directed by the order dated 18-4-1990 to make an enquiry regarding the age of Mohd. Gufran first and then proceed in the matter according to law.

(3.) THE learned Counsel for the applicant has also claimed that on merit the finding of the Additional Sessions Judge was not sound. Heard that the learned Additional Sessions Judge has relied upon for Photostat copy of the Transfer Certifi cate of School without production of the original. THE judgment of the Additional Sessions Judge indicates that the headmaster of the School have been examined and he had proved the Transfer Certificate and he has also proved the copy of the applica tion for admission and affidavit filed with it. Those documents have been mentioned asexkha-2andkha-3.