- (1.) B. K. Sharma, J. Heard Sri G. S. Hajela, learned Counsel for the applicant and the learned A. G. A. None appears for the opposite party No. 2, Mohd. Gufran.
(2.) IN Session Thai No. 921 of 1984, under Section 302/307, I. P. C. the present applicant Wazid Husain was the complainant and present opposite party No. 2 Gufran was accused. The trial was pending before the IXth Additional Sessions Judge, Moradabad. The opposite party No. 2 Mohd. Gufran raised a claim before the Addi tional Sessions Judge, Moradabad, that he is below 16 years and, therefore, he should be sent for trial before the Juvenile Judge concerned. During pendency of the enquiry about the age an application 89-B was also moved by him. By order dated 20-3-1990 the IXth Additional Sessions Judge placed reliance on the provisions of Section 63 of the U. P. Children Act, 1951 and directed that the trial of the two accused persons including Mohd. Gufran aforesaid will proceed together and that accused Mohd. Gufran may produced evidence of his age at the stage of defence for getting the benefit of the provisions of U. P. Children Act, 1951. This order was challenged before this Court in Criminal Revision No. 564 of 1990. It came up for hearing before Hon'ble Dr. R. R. Misra, J. who dismissed the revision by his order dated 18-4-1990. IN that judgment and order he observed that inquiry in regard to the claim of Gufran that he is under 16 years of age is still pending and the finding is to be recorded by the trial court. He further found that as the Juvenile Justice Act, 1986, came into force with effect from 3-12- 1986 and in view of the provision of Section 63 of the Juvenile Justice Act, 1986 regarding repeal, the U. P. Children Act, 1951, relied upon by the trial court is now no longer in existence and the case has to be proceeded with under the provisions of the Juvenile Act, 1986. It is also observed in the judgment that in the impugned order passed by the trial court there is a mention to the effect that evidence regarding the age of Gufran accused, shall be produced at the stage of defence and it was observed that in his opinion it was wholly erroneous in law and is against the legislative mandate and hence, an enquiry has got to be made at this stage regarding the age of the applicant Gufran and in case, it is found that Gufran accused is a juvenile then only at that stage the decision in the case of Guddu alias Pradyaniau Kumar Singh v. State of U. P, 1990 JIC 210 (All) will become applicable. This authority had been cited at that time by the learned Counsel for Mohd. Gufran in support of his submission that his trial alongwith the other accused who is a major cannot proceed under the law. The lower court concerned was directed by the order dated 18-4-1990 to make an enquiry regarding the age of Mohd. Gufran first and then proceed in the matter according to law. In pursuance of this order the proceedings were started before the Additional Sessions Judge for enquiry aforesaid. The said Additional Sessions Judge by his order dated 24-12-1992 after discussing the oral and documentary evidence led by the parties came to the conclusion that Mohd. Gufran, accused aforesaid was juvenile at the time of occurrence as his date of birth was 1-7-1971. The occurrence had taken place on 12-10-1984. Being aggrieved by the said judgment and order the present application under Section 482, Cr. P. C. has been movei by Wazid Husain complainant. The accused Gufran was made respondent No. 2. tie put in appearance through Counsel. However, the said Counsel did not appear vhen this application was taken up for hearing. The principal contention of the learned Counsel for the applicant, Wazid Husain is that since the juvenile Justice Act, 1986, cam into force subsequent the date of occurrence (12-10-1984), the Juvenile Justice Act, 1986, would not apply and the provisions of the Children Act, wold continue to app y and the Juvenile Justice Act, 1986, would not be applicable to the case. He has also placed reliance on Section 26 of the Juvenile Justice Act, 1986, in which the following provisions has been made: Special Provision in respect of pending case.- Notwithstanding anything contained in this Act, all proceedings in respect of a Juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Juvenile Court which shall, pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that the juvenile has committed the offence. The order dated 18-4-1990 passed by Hon'ble dr. R. R. Mishra, J. in Criminal Revision NO. 564 of 1990 of aforesaid inter parties is a hurdle in his way. It is in material that the applicant was not a party to that revision. U. P. State was very much a party to that revision and the State of U. P. has been heard and that was enough. The order in that revision were binding on the parties and no exception can be taken by the complainant at this stage to the findings and directions contained in that revisional judgment. The parties have proceeded with the enquiry in accordance with the order and direction in the aforesaid revisional judgment, before the Additional Sessions Judge, Moradabad, who has recorded the finding of fact as aforesaid that the date of birth of the accused Mohd. Gufran was 1-7-1971. The finding has gone against the prosecution and for this reason the complainant Wazid Husain has moved the present application under Section 482, Cr. P. C. No such application has been moved by the State of U. P. The contention of the learned A. G. A is that no proceeding in respect of juvenile was pending at the time when the Juvenile Justice Act, 1986, came into force. The proceedings were pending before the regular court of the Additional Sessions Judge and it was somewhere in the year 1990 when Mo id. Gufran raised the plea that he was a juvenile and under these circumstances only the provision of the Juvenile Justice Act, 1986, would be applicable and that the Children Act, could not be invoked as it having been repealed by the Juvenile Justice Act, 1986. I do not find any justification for taking a view different from the view taken by Hon'ble Dr. R. R. Mishra, J. in the aforesaid Criminal Revision No. 564 of 1990 or to refer the point of law (whether Juvenile Justice Act, 1986 would app y to such a case or the U. P. Children Act j 1950 would apply) to a larger bench.
(3.) THE learned Counsel for the applicant has also claimed that on merit the finding of the Additional Sessions Judge was not sound. Heard that the learned Additional Sessions Judge has relied upon for Photostat copy of the Transfer Certifi cate of School without production of the original. THE judgment of the Additional Sessions Judge indicates that the headmaster of the School have been examined and he had proved the Transfer Certificate and he has also proved the copy of the applica tion for admission and affidavit filed with it. Those documents have been mentioned asexkha-2andkha-3. The learned Counsel for the applicant has pointed out that the Additional Sessions Judge had not directed for medical examination to be done by the Chief Medical Officer for estimation of age on satisfaction test. A reference to the impugned judgment dated 24-12-1992 of the Additional Sessions Judge aforesaid shows that none of the party applied for estimation of age by the Chief Medical Officer, when there was positive evidence of birth the absence of estimation of age by the Chief Medical Officer cannot vitiate the finding and order of the Additional Sessions Judge aforesaid. It is needless to mention that any estimation of age at this stage as suggested by the learned Counsel for the applicant would serve no purpose because on either version the satisfaction of the relevant bones would have in any case completed, in other words, the report of the Chief Medical Officer would be consistent with both stands. To conclude I find no substance in this application under Section 482, Cr. PC. The application of the applicant is accordingly dismissed. The stay order dated 6-7-1993 passed by this Court is hereby vacated.;