SANJAY KUMAR MISTRY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present writ application has been filed for quashing the order dated 14-9-1993, passed by the Chief Judicial Magistrate, Patna, in Case No. 462 (M) of 1993, by which he has held that the petitioner was not juvenile, as defined under Section 2(h) of the Juvenile Justice Act (hereinafter referred to as the Act), as he has above 16 years of age on the date of occurrence.

(2.) Shorn of all the details the facts necessary for disposal of the present application are that the petitioner has been made an accused in a case under Section 302 of the Indian Penal Code on the accusation of having committed the murder of the son of the informant, namely, Binod Kumar, on 3-8-1989, At the stage of trial the petitioner took a plea that he was juvenile within the meaning of the Act at the time of the occurrence and as such his trial should be separated. The trial Court on 9-4-1990, at the time of framing of charges, found that the petitioner by appearance appeared to be like that of a boy (child) and, accordingly, an enquiry regarding the age of the petitioner was essential. He called for a report from the Civil Surgeon, Patna, who submitted a report on 2-5-1990 (Annexure-3), wherein he stated that at the time of examination on 20-4-1990 the age of the petitioner was between 17-18 years. After taking into consideration the aforesaid report of the Civil Surgeon, which was on the record, the trial Court rejected the prayer of the petitioner to treat him as a juvenile within the meaning of the Act and did not separate his trial from the other accused persons under Section 25 of the Act.

(3.) Against the order rejecting the prayer of the petitioner to treat him as a juvenile he filed Cr. Misc. No. 4612/91 in this Court which was heard by a learned Single Judge, who referred the matter to a Division Bench and the Division Bench, after hearing the parties and taking into consideration the law laid down by the Full Bench of this Court in Krishna Bhagwan V/s. The State of Bihar, 1989 PLJR 507, set aside the impugned order on the ground that the Trial Court has decided the question only on the basis of the report submitted by the Civil Surgeon and not on the basis of the evidence adduced on behalf of the parties. This Court remitted the matter to the Trial Court to get the question decided as to whether the petitioner was a juvenile or not by a Juvenile Court, if it has been constituted and, if not, then by a Judicial Magistrate, 1st Class, as provided by Section 7 of the Act in accordance with the provisions of Section 32 of the Act, after taking evidence on the point, as laid down in the case of Krishna Bhagwan . After the remand it appears that the parties did not lead any evidence and the Chief Judicial Magistrate, by order dated 4-3-1992 held that the petitioner was not juvenile as defined under Section 2 (h) of the Act. The petitioner challenged the aforesaid order in Cr. W. J. C. No. 156/92 and a Division Bench of this Court to which one of us (Nagendra Rai, J.) was a party, heard the matter and set aside the aforesaid order and directed the Chief Judicial Magistrate to give an opportunity to the parties to addue evidence and decide the question in controversy within a period of three months from the date of receipt of the order.