SUNIL KUMAR Vs. STATE OF M P

JUDGEMENT

(1.) Invoking the revisional jurisdiction under Section 401 of the Code of Criminal Procedure the petitioner has assailed the sustainability of the order dated 5-6-1997 passed in Session Trail No. 35/ 1995 by the learned Second Additional Sessions Judge, Rewa, wherein the said Court has rejected the prayer of the petitioner to treat him as a juvenile under the provisions of the Juvenile Justice Act, 1986 (hereinafter referred to as the Act).

(2.) The facts as have been unfolded are that the petitioner has been arraigned as an accused in Sessions Trial No. 35/1995 pending in the Court of Second Additional Sessions Judge, Rewa on the allegation that he was involved in the commission of the alleged offence which had occurred on 24-6-1993. During the pendency of the trial the petitioner filed an application on 7-4-1997 stating that his date of birth is 24-8-1977 and, therefore, he was a juvenile on the date of occurrence and hence, he should be appropriately dealt with. In support of the aforesaid plea the petitioner produced a photocopy of the report from the record of Kotwari Register, which reflects his date of birth to be 24-8-1977. Transfer certificate of Saraswati Shishu Bal Mandir where the accused had prosecuted his studies upto the class Nth was also filed to establish that his date of birth is 24-8-1977. The affidavits of the parents were also filed in support of his date of birth. The learned trial Judge took note of the belated filing of the application and mention of age to be 19 years in the application for bail preferred before this Court and entry in the school certificate and came to hold that the petitioner was not a juvenile at the time the incident took place. Being of this view he rejected the application of the petitioner.

(3.) Assailing the aforesaid order, it is submitted by Mr. S.L. Kochar learned Counsel for the petitioner that the learned trial Judge has committed gross illegality by opining that the petition should have been filed at an earlier point of time then an ossification test could have been done to determine the age of the petitioner. He has also submitted that the learned trial Judge has failed to appreciate that under compelling circumstances the petitioners age was mentioned in the school leaving certificate as it was mandatory to attain the age of 11 years to appear in primary school certificate examination and, therefore, the date of birth of applicant was recorded as 24-12-1974. It is also canvassed by Mr. Kochar that the Court below should have considered the entry in the Kotwari Register as that is maintained by the competent authority, Mr. Kochar learned Counsel for the petitioner in support of his submission has placed reliance on the decision rendered in the case of Bhola Bhagat v. state of Bihar. Resisting the aforesaid submissions of the learned Counsel for the petitioner, it is contended by Mr. B.P. Athya learned Government Advocate that learned trial Judge is justified in rejecting the application of the petitioner as it was quite belated. It is his further submission that once the college leaving certificate and school leaving certificate were produced to show the date of birth of the accused and the same have been relied upon by the learned trial Judge the order of rejection can not be found fault with.