DHAN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) IN this petition under section 482 of the Code of Criminal Procedure, it is required of this Court to let the petitioners participate in an inquiry to determine the age of Sher Din respondent No. 2 for the purpose of Haryana Children Act, 1974.

(2.) BRIEFLY stated, the facts are that on 5.3.1981, the mission of minor girls aged 5/6 years, named Nirmala Devi, was reported at Police Station Gharaunda. Later on 9.4.1981 a first information report under sections 302/376/201, Indian Penal Code, was registered against Sher Din respondent No. 2. Suggestion was made therein that he had committed forcible intercourse with the minor girl; caused her death and caused disappearance of the evident of the crime. The accused was brought before the Chief Judicial Magistrate, Karnal for being committed to the Court of Session to stand his trial. It transpired that the Court of the Chief Judicial Magistrate itself was "the Children Court" for purposes of the Haryana Children Act, 1974. A doubt having arisen in his mind, the learned Chief Judicial Magistrate undertook an inquiry to determine the age of the respondent. In the process he required the prosecution and the accused to lead evidence. Surprisingly, the prosecution itself examined Majid, the father of the accused as P.W. 1 and also tendered in evidence, Exhibit P1. The birth certificate suggestedly relating to the accused. The accused, only on the other hand, relied upon his school leaving certificate. The learned Chief Judicial Magistrate, however, did not take care to invite participation of the complaints, the present petitioners, in the said proceedings. On the evidence recorded, he came to the conclusion that Sher Din accuse-respondent was a child. He rejected birth certificate, Exhibit P.1 on the sole ground that therein the name of the accused did not figure. The birth certificate disclose that a son by the name of the Nanha was born to Majid son of Badlu of village Gudha on 8.10.1963. Majid had however, in his statement suggested that his son was about 15 years of age and he was his eldest son who was born at village Gudha. The school leaving certificate, Exhibit DA, however, disclosed that the date of birth of the accused was 15.1.1966. So approximately there was 2-1/4 years difference between Exhibits DA and p1. Relying on Exhibit DA, the learned Chief Judicial Magistrate held that Sher Din accused-respondent was a child when the occurrence had taken place, as suggested by the investigation, on 3.3.1981.

(3.) THE provision of Haryana Children Act envisage setting up of a Children Court and in the absence of one being set up, the powers of that Court are to be exercised by a Judicial Magistrate 1st class specially nominated by the Sessions Judge. I had occasion to observe in Surjit Singh v. State of Haryana and others, 1983 (1) C.L.R. 403 that teh Chief Judicial Magistrate, Karnal seemingly was such a nominated Court. As said before the accused-respondent in regular way was brought before the Chief Judicial or Magistrate to be committed to the Court of Session, And this gave occasion for the learned Chief Judicial Magistrate to go into the question as to whether the accused respondent was child within the meaning of the aforesaid Act or not.