KUMARI CHAMLI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This revision is directed against the order dated 21.6.2002 whereby learned Additional Sessions Judge (Fast Track) Jhunjhunu, dismissed the application of the accused petitioner and declined to treat her under 18 years of age.

(2.) The facts in brief are that the accused petitioner was arrested on 12.11.1999 in F.I.R. no. 249/1999 registered for offence under Sections 148, 302 and other offences of I.P.C. After investigation challan was filed against accused persons including the accused petitioner. An application was moved on behalf of the accused petitioner on 19.10.2001 to the effect that she was about 14 years of age at the time of incident, hence she was juvenile and thus this case so far relates to the petitioner should be remitted to the Juvenile Court. Learned Trial Judge after inquiry came to this conclusion that on the date of filing this application i.e. 19.10.2001 she was not a juvenile, hence the application was dismissed.

(3.) I have heard learned counsel and learned Public Prosecutor. According to clause (k) of Sec. 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000, "juvenile" or "child" means a person who has not completed eighteen years of age. Learned Trial Judge relying upon Arnit Das Vs. State of Bihar (AIR 2000 SC 2264) came to this conclusion that the relevant date for determination of the age is the date when the accused is brought before the competent authority and not date of commission of offence. Learned counsel for the accused petitioner submitted that this judgment is of Honourable two judges of the Supreme Court while Honourable three judges of the Supreme Court held in Umesh Chandra Vs. State of Rajasthan (1982) 2 Supreme Court Cases 202) that age of the accused is to. be reckoned with reference to the date of commission of offence. This judgment was delivered on the similar provisions of the Rajasthan Children Act, 1970. Learned counsel further submitted that a review petition was moved before the Honourable Supreme Court against the judgment In Arnit Das's case (supra) and the review petition was referred to the larger bench. The Honourable Supreme Court in Arnit Das Vs. State of Bihar (III) (2001, CCR 230 (SC) came to the conclusion that in this case the accused was found above 18 years of age on the date of commission of the offence, hence no decision was given on review petition. Although it was observed that both the judgments (supra) are conflicting. Learned counsel relying upon Mahanagar Railway Vendors' Union Vs. Union of India and others, (1994 Supp (1) Supreme Court Cases 609) contended that decision given by a larger bench (three-Judge Bench), held, would prevail over the decision by a smaller Bench (two-Judge Bench), therefore, the judgment of Hon'ble Bench consisting of three Judges of the Supreme Court in Umesh Chandra's (supra) would prevail over the judgment of Honourable Division Bench of the Supreme Court, thence the relevant date to determine the age of the accused petitioner would be the age of commission of offence and the date of incident in this case was 12.11.1999 while learned Trial Judge decided the age of the accused petitioner with reference to the date of application i.e. 19.10.2001. Therefore, this case has to be remanded for fresh consideration.