YAQOOB Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS application is directed against the order passed by the Addl. Sessions Judge (2), Kota whereby he dismissed the revision petition of the accused petitioner and confirmed the order dated 3 -9 -82 passed by the Children's Court, Kota.

(2.) ON the basis of a report lodged at P.S. Kenwas the accused -applicant was arrested in a case for the offence Under Section 302, IPC on 1 -2 -82 and he was produced before the Munsiff Judicial Magistrate Sangod. During the detention of the accused -petitioner in judicial custody the accused -applicant, was sent by the jail authorities to the Medical Officer, Government Hospital, Ramganj Mandi for his examination for determining his age, and after examination the Medical Officer found that the accused -applicant is 15/16 years of age. On the basis of this report, the Munsif and Judicial Magistrate, Sangod observed that the accused -applicant is a child as defined in the Rajasthan Children Act, 1970 (here in after referred to as the Act of 1970), and as such he was of the opinion that the case against the accused -applicant should be enquired into by the Children's Court and after recording such opinion forwarded the accused -applicant along with the record of the proceedings to the Children's Court having jurisdiction. When the accused -applicant was produced before the Children's Court, Kota, he was directed to be kept in children's home but he was not sent by the police authorities. Therefore, the Children's Court, Kota called for the explanation of the police officers, who disputed the age of the accused -applicant and alleged that the age of the accused -applicant on the date of occurrence was more than 17 years. After the report of this objection, the Children's Court, Kota directed the jail authorities to get the applicant examined by a Medical Officer and the same was done. On the basis of ossification test the Medical Jurist, M.B.S. Hospital, Kota opined that the age of the accused -applicant is nearly 20 years. The school record relating to the admission of the accused -applicant in the school at Kanvas was also perused by the Children's Court and it was found that the admission form of the accused was submitted in the school by his father which bears his signature and in that form the date of birth was entered as 1 -7 -1964. Similar is the entry in the school register. Thus it was found that on the day of occurrence, i.e. 30 -1 -1982 the accused -applicant was more than 17 years of age. On behalf of the accused -appellant his father and two others filed their affidavits wherein the date of birth of the applicant was shown as 15 -7 -1966. The applicant's father in his affidavit has stated that he had never gone to the Secondary School at Kanvas at the time when the applicant took admission in the school. It has been further stated that the near relatives of the applicant we it to the school and they had given the date of birth on conjectures and surmises. After considering their relevant documents produced by the parties, the Children's Court, Kota vide its order dated 3 -9 -82 held that the age of the accused -applicant was more than 16 yrs. and as such the case was ordered to be remitted to the Special Judicial Magistrate, Kota to proceed accordingly. Aggrieved by this order of the Competent Authority, i.e., the Children's Court Kota a revision petition was filed in the Court of Sessions Judge, Kota which has been dismissed by the Addl. Sessions Judge (2), Kota. Hence this application.

(3.) IT has been argued by the learned Counsel for the applicant that that Munsif and Judicial Magistrate, Sangod passed an order Under Section 8 of the Act of 1970 after being satisfied that the applicant is a child under the Act of 1970 He, therefore, forwarded the accused to the Competent Authority along with the record. Therefore, the Munsif and Judicial Magistrate was the only competent authority, who could have decided the age of the applicant and it was not open to the Children's Court to have decided the same issue. Under Section 8(2) of the Act of 1970 after the receipt of record and appearance of the child before the Children's Court's, it is bound to hold enquiry under Section 39 of the Act of 1970. It has been further argued by the learned Counsel that on 3 -9 -82 there were three members which constituted a bench of the Children's Court and all the three had taken part in the deliberations, but the order dated 3 -9 -82 has been signed only by the members of the bench, and Smt. Suhag Kapilash, Member of the Children's Court was though present, but her signatures were not obtained on the order dt. 3 -9 -82. As such the order is illegal. It was further argued that the affidavits filed on behalf of the applicant, and specially the affidavit of his father, has been wrongly disbelieved by the Children's Court, and that the statement of his father has to be believed as against the ossification test. It was further argued that the school register is not a conclusive evidence for the determination of age. It has been further argued that the Children's court had no jurisdiction to make any enquiry for the determination of age of a person who was produced before it.