- (1.) A. S. Tripathi, J. Heard learned counsel for the revisionist and learned A. G. A. appearing for the opposite party. This revision is filed against the order dated 27-9-93 passed by IIIrd Addl. Sessions Judge, Allahabad whereby the application of the revivisionist Sugga alias Subhash Chandra for his trial as Juvenile being rejected.
(2.) THE revisionist has claimed that he was below 16 years of age at the time of the incident which took place in the year 1986. It is clear from the order of the trial Court itself that at the time of the disposal of bail application, the trial Judge disposed off the application and held that the applicant was minor at the time of the incident, while considering the application, the trial Judge held that the observations made and findings recorded at the time of the disposal of the bail application was not a conclusive order. On this point a case was referred as reported in 1991 ACC 260-Kali Charan v. State, In that case the only point for determination was that the order passed at the time of the disposing of the bail application shall not be conclusive proof at the time of the trial, and in that case the point was entirely different. THE observations made at the time of the disposal of the bail application are not conclusion and the findings recorded after the evidence in trial may be different. On this point a question has been raised as to whether the applicant was below 16 years of age at the time of the incident. This point has been considered by the trial Court without assessing the evidence. The learned trial Court simply observed that the applicant appears to be major. The assessment of age has to be made on the evidence adduced by the applicant on the basis of School Leaving Certificate, Birth Certificate, Medical Certificate and other documents showing the date of birth. The observations of the trial Court is that the applicant is major and has three issues and by appearance to be major is not at all a proper assessment of age for finding out of the fact as to the applicant was juvenile of below 16 years of age at the time of the incident. The learned Trial Judge has assessed the age while passing the order on 27-9-93. The assessment of age of the applicant in 1993 is highly improper when the incident has taken place in 1986 and the trial Court's findings is not sustainable under the law. Therefore, it is apparent on record that the trial Court has committed an error for assessing the age of applicant while passing the order in 1993 when the incident had taken place in 1986.
(3.) LEARNED counsel for the applicant has referred a case of Mahmood Ahmad v. State of U. P. , 1982 ACC 26. In that case this court has clearly held that the determination of age by individual appearance is highly unsatisfactory. A proper enquiry has to be made for assessment of age on the date of incident, but the assessment of age by appearance while passing the order is not at all proper under law and there appears manifest error in the order passed by the Trial Judge. Accordingly, it is directed that the learned trial Judge shall again consider the point of age of the applicant at the time of the incident after getting the proper evidence adduced by the applicant on this point. It is further directed that the applicant shall be given a reasonable opportunity to adduce the evidence before the trial Judge and then after assessing the evidence an appropriate order has to be passed by the trial Judge according to law regarding age of the applicant on date of alleged incident.;