Decided on July 15,1960



V.B.RAJU - (1.)THIS is a reference by the learned Sessions Judge of Baroda recommending that the committal of Dungaria Mahalal who is accused No. 3 in Sessions Case No. 3 of 1960 should be quashed as he was a child under the Bombay Children Act.
(2.)IN his order the learned Sessions Judge observed that the offence had taken place in September 1959 and the accused in question was arrested on 27-9-59. Two Medical Officers examined him about 4 months later and the doctors were of the opinion that he was about 16 years of age. The learned Sessions Judge thought that in such cases it was for the prosecution to prove that the accused was not a child. According to the learned Sessions Judge the accused appears to have been less than 16 years of age on the day of the offence and therefore he must be held to be a child within the meaning of the Bombay Children Act. Under the Bombay Children Act child is defined as a boy or a girl who has not attained the age of 16 years. When the accused appears to be a child a Juvenile Court should try the case. Similarly if the accused happens to an adult a Juvenile Court should not try the case IN such case it would not be correct to say that it is for the prosecution to prove that the accused before the Court is not a child. It is the duty of the Court to see that it does nor exercise jurisdiction which it does not possess. Therefore the Court has to make a thorough inquiry into the age of the accused. The opinion of the doctors that the accused was about 16 years of age when they examined him does not help. The learned Sessions Judge should get more precise evidence if available on the questions of the age of the accused on the date of the offence. If after making a further inquiry and without putting the burden of proof on the prosecution of the accused the learned Sessions Judge comes to a finding that the accused had not attained the age of 16 years on the date of the offence he can make a reference for quashing the committal of the accused. Order accordingly.

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