SURESH AGARWAL Vs. STATE OF M P

JUDGEMENT

(1.) FEELING aggrieved by the order dated 1-7-1997 passed in criminal Case No. 45/97 by the learned Judicial Magistrate, First Class, raipur refusing to accept the prayer of the accused-petitioner to treat him as a juvenile, he has approached this Court for setting aside the same and to issue a further direction to treat him as a juvenile and proceed in accordance with the provisions of the Juvenile Justice Act, 1986 (hereinafter referred to as the Act' ).

(2.) THE facts as have been depicted in the petition are that the petitioner was arrested for an offence under section 302/34 of the Indian penal Code forming the subject-matter of criminal case No. 45/97 pertaining to the police station Amanaka, Raipur on the allegation that in the afternoon of 27-2-1997, the petitioner along with other co-accused persons assaulted one Dilip who ultimately succumbed to his injuries. On 28-6-1997 an application was filed under section 437 of the Code of Criminal Procedure (in short the 'code') before the learned Judicial Magistrate, First Class, Raipur for releasing the applicant on bail on the ground that he was below 16 years of age. His birth certificate indicating his date of birth as 12-8-1981 was produced before the learned Magistrate. The birth certificate was issued by the competent authority on 6-6-1997. After the application was filed the learned Magistrate directed for conducting the ossification test of the accused-petitioner for determination of his age. The matter was adjourned from time to time waiting for the report of the ossification test. After receipt of the report, the matter was decided by the impugned order dated 1-7-1997. The learned Magistrate disbelieved the birth certificate on the ground that it was issued on 6-6-1997 after the date of occurrence. The learned Magistrate referred to the ossification test report submitted by the Radiologist who had opined that the age of the accused was between 15 to 16 years and came to hold that after giving margin of two years, it could be held that the accused was more than 16 years on the date of the incident. Being of this view he rejected the prayer of the accused and declined to send the matter for trial by the Juvenile Court. This is the cause of grievance of the present revisionist.

(3.) ASSAILING the aforesaid order Mr. S. L. Kochar, learned counsel for the petitioner has contended that the learned Magistrate has committed gross illegality by deciding the matter without affording an opportunity to the petitioner inasmuch as on 1-7-1997 the counsel was not present to address the court. It is his further submission that the learned Magistrate while rejecting the application for bail has rejected the prayer of the petitioner to treat him as juvenile which was absolutely unwarranted. He has seriously criticised the approach of the court below in rejecting the birth certificate granted by the competent authority solely on the ground that the same was obtained on 6-6-1997 after the date of occurrence. The learned counsel has also emphasised that the ossification test indicated the age of the petitioner between 15 to 16 years but the learned Magistrate taking recourse to the concept of error in such test added 2 years and determined the age to be more than 16 years which is unsustainable inasmuch as the benefit should have been given to the accused, more so, when the birth certificate granted by the competent authority was produced. Combating the aforesaid submission, Mr. Anurag Choudhary, learned panel Lawyer for the State, has urged with vehemence that the learned magistrate has correctly ignored the birth certificate as the same was a photocopy and was obtained after the date of occurrence. The learned counsel for the state further contended that it is well settled that in an ossification test there can be a possible error of 3 years, and therefore, taking this aspect into consideration when the learned Magistrate has rejected the plea of the petitioner, said conclusion cannot be faulted.