- (1.) B. B. Agarwal, J. This petition has been filed under Section 482 Cr. P. C. for issuance of a direction to the trial Court for medical examination of the petitioner in order to ascertain the age of the petitioner, so that the matter in question as to whether the petitioner; was or was not juvenile on the date of occurrence may be adjudicated and till then the proceedings in S. T. No. 367/2003 under Section 302/201pending in the Court of 1st Additional Sessions Judge, Faizabad shall remain stayed.
(2.) HEARD Sri Abdul Rafey Siddiqui, Advocate, from the side of the petitioner and A. G. A. from the side of State of U. P. It appears that the petitioner was an accused in S. T. No. 367/03 under Section 302/201 I. P. C. One application was moved on behalf of the petitioner for declaring him juvenile as his date of birth was 15- 5-1989 and he was below 18 years at the time of the trial or at the time of the alleged incident. The application was moved on 4-3-2005. This application was rejected by the 1st Additional Sessions Judge concerned on 5-3-2005 observing that by looks the applicant appeared to be 20 years old and no supporting evidence was filed and also that he was mentioned in the charge-sheet, 20 years old. Again on 9-3-2005 another application was moved with the same prayer specifically mentioning the law laid down by the apex Court. In the case of Raisul v. State of U. P. , reported in 1977 Cr. L. J. 1553 (SC) (FB ). A prayer was made for medical examination of the applicant for the purpose of adjudication of his age and for giving opportunity to the petitioner to produce evidence in support of his contention. This application was supported by an affidavit of the father of the petitioner. This application was rejected on 15-3-2005 by the 1st Additional Sessions Judge observing that it was moved in order to make delay in the proceedings and that the informant was present for evidence. The argument of the learned Counsel for the petitioner before this Court is that the order passed by the 1st Additional Sessions Judge concerned is per se illegal and arbitrary and against the natural justice. The Sessions Judge concerned did not care to see the law relied on by the applicant and was specifically mentioned in the application dated 9-3-2005 wherein the apex Court has held that the approach to adjudicate the age of any person Presiding Officer under his own imagination view was not proper as there was always a possibility of error in determination of the age of a person on the basis of his apparent looks and structure of body of a person.
(3.) LEARNED Sessions Judge appears to have rejected both; the applications rejecting the age of the applicant on the basis of his apparent body looks and body structure. This approach in my opinion is contrary to the law laid down by the apex Court in the aforesaid law cited above and to the provisions of the Juvenile Justice Act, 56 of 2000. The applicant petitioner was required to be examined medically and he must have been given opportunity of hearing to produce evidence before passing any order on his applications, but this has not been done by the Court concerned, hence the order passed by the 1st Additional Sessions Judge concerned cannot be held justified. This Court in exercise of its powers under Section 482 is empowered to pass any order in order to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Hence, petition may be allowed and the impugned orders passed by the 1st Additional Sessions Judge may be set aside. Petition is hereby allowed. Impugned orders dated 5-3-2005 and 15-3-2005 passed by 1st Additional Sessions Judge set aside. The 1st Additional Sessions Judge concerned is directed to dispose of the petition dated 9-3-2005 by passing appropriate order in the light of the law laid down by the apex Court in the case of Raisul v. State of U. P. , and keeping in mind the provisions of Juvenile Justice Act, 56 of 2000 on the matter in question. The proceedings against the applicant petitioner in the aforesaid Sessions Trial shall remain stayed till disposal of the application afresh by the 1st Additional Sessions Judge concerned. However, the learned Sessions Judge may proceed against other co-accused, if any. .;