- (1.) C. A. Rahim, J. This revision has been preferred against the order dated 9-10-1991 passed by the learned Vth Additional District and Sessions Judge, Allahabad in S. T. No. 387 of 1990. By that order learned Judge refused to accept the prayer of the revisionist that his case be tried separate ly by competent court under the Juvenile Justice Act, 1986.
(2.) LEARNED counsel for the revisionist has sumitted that the finding of the learned Additional District Judge with regard to the age of the revi sionist was not based on materials produced before him and, therefore, bad in law. He should have relied upon the birth certificate of the revisionist along with the affidavit filed by his mother and pass orders according to law referring the matter to a competent Juvenile Court for separate trial. Learned counsel appearing for the opposite party No. 2 has sub mitted that the finding of the learned Magistrate at the time of granting bail was not based on the basis of the medical evidence. It has also been sub mitted that the counter affidavit on behalf the complainant was also not considered by the learned Magistrate. Therefore, the finding of the learned Magistrate that he was below 16 years of age was rightly rejected by the learned Additional Sessions Judge and fixed it for trial. A case under Section 302, IPC was started against the revisionist and another which ended in charge- sheet. The case was, therefore, committed to the court of sessions. On behalf of the revisionist an application for bail was filed with the plea that the revisionist was a minor. The said plea was accepted by the learned Magistrate on the basis of the birth certificate and an affidavit filed by the mother of the revisionist bail was granted. After commitment another application was filed on behalf of the revisionist drawing the attention of the learned Additional District Judge for sending the case of the revisionist to a competent Juvenile Court for separate trial. The said application was rejected and hence this revision.
(3.) LEARNED counsel for the revisionist has referred the case of Jayamala v. Stale of Jammu and Kashmir, reported in 1982 Cr LJ 1777 (SC) wherein it has been held that margin of error in age ascertained by radiological examination is two years either way. A copy of the judgment dated 27-8-1990 passed in connection with Criminal Revision No. 1224 of 1990 has been filed on behalf of the revisionist, on the basis of the decision of Jaymala case it was held that then there was any possibility of variation benefit goes to the accused. In that case, in view of the decision of the Supreme Court (supra) it was held that the accused was a juvenile and order was passed accordingly. As against that learned counsel for the opposite party No. 2 has referred a case of Gur. Mukh Singh v. State of M. P. , reported in 1990 U. P. Crl. Ruling 264 wherein it has been held that where there is no Juvenile Court the High Court directed the Chief Judicial Magistrate to enquire into the matter. Referring another decision reported in 1992 U. P. Crl. Ruling 486-Jogesh Kumar Pathnk v. State, the learned counsel has submitted that the learned Sessions Judge can enquire into the age of the accused when a controversy is raised with regard to it.;