ZAKIR HUSSAIN AND ANR. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) -Both the petitioners have been filed under section 439, Code Criminal Procedure in FIR No. 522/96 P.S. Sadar, Bilwara and, therefore, both of them are disposed of by this common order. The allegations against the accused-petitioner as well as Kanwar Lal, who have been challaned under sections 302 & 364 read with Sec. 34, IPC, after investigation, in the Court of Session, Bhilwara, are that on 9.8.1996, accused Kaloo Ram with the aid and abetment of Kanwar Lal as well as Jakir Hussain, abducted Satish, aged 9 years, who was son of Radhey Shyam Kabra, at the time when Satish was returning home from his school. In the late evening, they took Satish to a lonely place on the Mandalgarh road, ahead of Hanumanji's temple and, thereafter, Kaloo Ram inflicted as many as 31. injuries with a 'gupti' and, thereafter, they threw the dead body of Satish in a depression by the side of the canal. All the accused-persons were apprehended on 10.8.1996. After filing of charge-sheet, as above, both the accused-petitioners moved bail petitions under section 439, Code Criminal Procedure in the Court of learned Sessions Bhilwara who rejected the same.

(2.) I have heard the learned counsel for the petitioners as well as the learned P.P. and the learned counsel for the complainant and have also gone through the documentary evidence filed in support of the charge-sheet presented against the petitioners.

(3.) The learned counsel for the accused Jakir Hussain has contended that the accused was born on 27.6.1981 and so he was aged below 16 years and, therefore, he was a juvenile and, even if the prosecution story is accepted, since the petitioner was a delinquent juvenile and, therefore, he could only be tried by a Juvenile Court constituted under the Juvenile Justice Act, 1986 (for short 'the Act'). However, when this objection was raised before the learned Sessions Judge, the learned Sessions Judge embarked upon an enquiry and held that the accused-petitioner was aged more than 16 years and so he was not a delinquent juvenile and, therefore, he could not be extended benefit of Sec. 18 of the Act. Besides, holding that there were grounds to believe that the accused-petitioner was involved in commission of the murder and abduction of Satish with an intent to commit his murder. However, the learned counsel for the accused-petitioner further contended that the learned Sessions Judge took erroneous view of the evidence produced by the parties and erred while holding that the accused-petitioner was more than 16 years of age on the date of commission of the alleged offences.