- (1.) N. B. Asthana, J. The revisionist was committed in S. T. 403 of 1994 to stand his trial in the Court of Session for the offence punishable under Section 302, I. P. C. Before the Sessions Court he moved an application stating that on the date of incident he was minor and, therefore, his case be sent to the Court of Juvenile Judge and that he cannot be proceeded with in the court of Session along with the other co-accused. This application was contested by the State. Smt. Nankai the com plainant filed an affidavit stating that this plea is an after thought in as much as this plea was not taken even when the bail applications were filed. It appears that he was granted bail by the High Court. It was further said that the revisionist was a student of Prathmik Vidyalaya, Tilhapur Newada, Allahabad in Primary classes wherein his date of birth given was 3-1-75 and hence he was not minor on the date the incident is said to have taken place. The incident is said to have taken place on 18-3-94. Accord ing to her the accused was more than 19 years of age on the date of incident and was, therefore, not entitled to the benefit of Juvenile Justice Act. The revisionist along with the application filed the mark-sheet of class-VIII of Bharat Bharti Junior High School, Aundhan, Allahabad and the certified copy of the scholars register and trans fer certificate showing his date of birth as 10-2-80. The trial court summoned the principal of Prathmik Vidyalaya, Tilhapur Newada who brought original registers and filed a Photo-state copy of the entries of this register. He also filed the photo state copy of school leaving certificate and photo-state copy of the register of marks secured by him in that institution. He also brought other papers detailed in the order of the trial court. The counterfoil of the school leaving certificate contained the signature of Amrit Lai on the back. The revisionist admitted this signature to be of him. From this evidence the trial court came to the conclusion that the revisionist took education in Prathmik Vidyalaya, Tilhapur Newada and that he was born on 3-1-75. The trial court was of the opinion that the date of birth 10-12-80 was wrongly shown in the other institution. According to the trial court this date was maneuvered and was also a false one in the light of the date of birth given in the Prathmik Vidyalaya, Tilhapur Newada, Allahabad. The trial court came to the conclusion that he was born 3-1-75 and was, therefore, not entitled to benefit of Juvenile Justice Act as he was not a minor on the date of alleged commission of the offence. The trial court also took into consideration the fact that the revisionist did not take this plea even at the time of moving application for bail in the High Court.
(2.) IT was argued that under Section 8 of the Juvenile Justice Act, the matter should have been referred for enquiry to the Magistrate concerned and that an enquiry could not have been made by the Sessions Judge himself. Section 8 of the Juvenile Justice Act lays down that when any Magistrate not empowered to exercise the powers of a Board or a Juvenile court under this Act is of opinion that a person brought before him under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a Juvenile, he shall record such opinion and forward the juvenile and the record of the proceeding to the competent authority having jurisdiction over the proceeding. Sub-section (2) lays down that the competent authority to which the proceeding is forwarded under subjection (1) shall hold the inquiry as if the juvenile had originally been brought before it. There is nothing in this section to indicate that the inquiry has also to be undertaken by the Magistrate empowered to exercise the powers of Board or Juvenile court even if the application for the benefit of the Juvenile Justice Act is moved before the Sessions Judge. Reliance has been placed upon Kamlesh Kumar alias Manki v. State of UP 1994 U. P. Criminal Rulings 595 in which it was held that Section 8 confers jurisdiction regarding determination of age on special Magistrate and that the Sessions Judge has no jurisdiction. He is bound to refer the matter to Magistrate having jurisdiction. From this ruling it does not appear as to whether t he application was filed before the Magistrate and the Magistrate committed the accused without deciding that question or referring it under Section 8 of the Juvenile Justice Act to the competent court. The next ruling relied upon is Sheo Mangal and another V. The State of U. P, 1990 U. P. Cr. PC. 326. In that case the application was moved under the Juvenile Justice Act before the Magistrate. The Magistrate did not do anything and committed the accused to the Court of Session. This Court held that the Sessions Judge should send back the matter to court of Magistrate with the direction to proceed afresh keeping in view the provisions of Section 8 of the Act. In this ruling the application was moved before the Magistrate and, therefore, he was bound to observe the procedure as provided under Section 8 of the Juvenile Justice Act. This is, however, not the case here. No provision was pointed out in the Juvenile Justice Act under which the Sessions Judge may be required to refer the matter under Section 8 of the Juvenile Justice Act. It cannot, therefore, be said that the order passed by the trial court was not in accordance with the provisions of Juvenile Justice Act. From the material placed on record it was clearly established that the plea taken by the revisionist of being a Juvenile on the date of alleged offence was not a bona fide one. This plea was taken for the first time at the Sessions Stage and the School leaving certificate and other papers which were brought on record and which carried the signature of the accused clearly indicate his date of birth to be 3-1-75. It appears he got forged papers prepared showing his date of birth as 10-12-80 and then filed the application before the trial court under the Juvenile Justice Act. It was not a bona fide application. Juvenile Justice Act is meant to give benefit to the persons who are entitled to its benefit. It is not meant to be a cloak for the persons who are not covered by the Act and commit heinous offences.
(3.) IT was then urged that had the matter been decided under Section 8 of the Act then the revisionist would have a right of appeal to the Sessions Judge and then a right. of revision before the High Court and in the instant case since the matter has been decided by the Sessions Judge he has been deprived of his right to appeal. The revisionist is to be blamed for it. He was represented throughout by a lawyer. He moved an application in the Hon'ble High Court through a lawyer. If he did not tell his lawyer that he was minor on the date of alleged offence he is himself to be blamed for it. He cannot take advantage of his own mistake. In fact, it appears that he was not at all a minor and, therefore, neither moved any application before the Magistrate nor brought this fact to the notice of the Court at the time of seeking bail. IT clearly appears to be an after thought and for that very reason the application was given at the trial stage. In the circumstances he is not entitled to be shown any leniency. If his right of appeal is jeopardised he is responsible for it. The law does not provide that the Sessions Judge should send the application for inquiry before the concerned Magistrate, if plea for the Juvenile Justice Act is taken before it. The revision in the circumstances has no force and is dismissed at the admis sion stage. Revision dismissed. .;