Arunachalam, J. - (1.) THE Petitioner was shown as one of the accused in C.C. No. 5 of 1985 on the file of the Additional Sessions Judge, Periyar District at Erode. In Cr. No. 478 of 1984 registered on the file of Gopichettipalayam police station three persons were shown as accused. The Petitioner and another Shanmugham are stated to be the sons of one Duraiswami, yet another accused in the same crime. The Judicial Second Class Magistrate, Gopichettipalayam, in his committal proceedings found the Petitioner and Shanmugham to be juveniles and therefore, split up their case from that of the adult accused Duraiswami and committed both the cases for trial to the Court of Session, Periyar District at Erode.
(2.) THE learned magistrate had the Petitioner and Shanmugham radiologically examined. Subsequently, the Radiologist Dr. A. Murugesan was examined as C.W.1. The evidence of C.W.1 was that Shanmugham was aged 14 years, Dr. Kali Goundar was examined as C.W.2. and it is his evidence that the age of the Petitioner then was 17 years. After complying with the formalities contemplated under Section 207 Code of Criminal Procedure the case against the juveniles was also forwarded to the Sessions Court. When the learned Sessions Judge took up enquiry against the juvenile accused, learned Public Prosecutor chose to represent that the Petitioner herein was an adult accused. Therefore, the learned Sessions Judge furnished yet another opportunity to the prosecution to adduce evidence regarding the age of the Petitioner. In the Sessions Court one Yesuraj, Headmaster of Sacred Mariyannai Primary School was examined as C.W.1. He deposed that Dhanapal son of Ramasami was admitted in the Fourth Standard on 25 -6 -1973. The date of birth of the said Dhanapal is found in the record was 20 -5 -1965. On 31 -3 -1977, record -sheet of the said Dhanapal was returned to admit him in a different school. Since Dhanapal could not be admitted in any other school he was re -admitted on 20 -6 -1977 in the same school. C.W.1 stated in Court that he had with him the relevant records to show the date of birth of the said Dhanapal, whom he identified to be the Petitioner herein. While cross examined, he had stated that some parents used to give a higher age for their children at the time of admission and he was not aware if the recorded age of Dhanapal also belonged to that category. C.W.1 also stated in his evidence that at the time of admission of Dhanapal, a record sheet from Odakkattur school was produced and the same had been returned to Dhanapal when he stopped attending school. It is clear from the records that no documents were marked before the court of Session. It is, therefore, apparent that the evidence of C.W.1 is available for scrutiny without the documents themselves being marked and tested by cross examination. The learned Sessions Judge arrived at the conclusion that since the occurrence had taken place on 17.4.1984, the Petitioner was not a juvenile on that date since the evidence of C.W.1 would show that the Petitioner was born on 20 -5 -1965. While commenting upon the declaration of age by the Committal Magistrate the learned Sessions Judge held that the opinion of the Radiologist was only approximate. He further found that if the date of birth as spoken to by C.W.1 Yesuraj was not correct, the onus was on the Petitioner to disprove it. In that view, the case against the Petitioner was again split up by the Court of Session and remitted to the committal magistrate to take the case on file over again and commit the Petitioner for trial as an adult accused. It is this order of the Court of Session which is challenged in this revision.
(3.) LEARNED Counsel for the Petitioner contended that the Court of Session had erred in remitting the matter to the committal Court especially when the committal Court had declared the age of the Petitioner as contemplated under Section 37 of the Tamil Nadu Children Act subsequent to recording of medical evidence. It was further contended that the order of the committal Court cannot be invalidated by any subsequent proof, that the age of the Petitioner had not been correctly stated to that court and the sessions court must have confirmed the age presumed or declared by the committal court to be the true age of the Petitioners.;