- (1.) N. B. Asthana, J. Opposite party No. 2, Dost Mohammad filed a com plaint under Sections 147, 352, 504 and 506, I. P. C. in the Court of HI Judicial Magistrate, Varanasi. It was registered as criminal case No. 82 of 1992. It was dismissed by the Magistrate under Section 203, Cr. P. C. on 11-1-1993 on the ground that no evidence has been adduced to indicate that the marriage of the complainant's son took place with the daughter of Abdul Aziz. He did not go into the merits of the evidence adduced under Section 202, Cr. P. C. Aggrieved by this order the complainant filed criminal revision No. 73 of 1993 which was decided by XI Addl. Sessions Judge, Varanasi on 28-1-1995. The revisional court after discussing the evidence adduced in the case came to the conclusion that a prima facie case has been made out. The operative portion of the judgment is that the accused are summoned for the offence under Sections 147, 352, 504 and 506, I. P. C. and that they would appear in the trial court on 28-2-1995. It was argued that under Section 398, Cr. P. C. the revisional court could have directed the trial court to make further enquiry in the matter as contemplated by Section 398, Cr. P. C. and that the revisional court itself could not have ordered for summoning the accused. This argument appears to be correct. The revisional court could not have directed for summoning the accused. He could have directed only for making further enquiry as contemplated under Section 398, Cr. P. C.
(2.) THE revision is allowed in part. THE order passed by the revisional court is modified. THE case is seat back to tie Magistrate under Station 398, Qr. P. C- for making further enquiry in though, Revision partly allowed accused facing trial it should be disposed of according to the provisions of the Juvenile Justice Act. Taking that view of the matter the contention of the applicant Nos. 1 and 2 are taken together and disposed of. 2. Learned counsel for the applicants has submitted that under Section 8 an enquiry was to be conducted by the Magistrate prior to commitment of the accused to the Court of Session but the said proceeding was not taken up at that stage, plea has been taken when the case has been committed to the Court of Sessions. Even then the age of the applicants should be determined by the Committing Magistrate under Sec. 8 of the Juvenile Justice Act. He has referred to the case of Sheo Mongol v. THE State of U. P. , 1990 UP Crr 326, wherein it has been held that when the Magistrate did not determine the age of the Juvenile and committed the case to Sessions Court, the Sessions Judge should send back the case to the Court of Magistrate with a direction to proceed afresh keeping in view the provisions of Section 8 of the Act. He has also referred the case of Kamlesh Kumar v. State of U. P. , 1994 ACC 650, wherein it has been held that Section 8 confers the jurisdiction only on a Magistrate to determine the age of juvenile delinquents. Session Judge has no jurisdiction and is bound to refer the question of age for determi nation by proper authority. The matter was remanded back to the Magistrate for determination of age. The order of commitment to the Court of Sessions was set aside. In another case reported in 1990 UP Cr R 265, Ankesh Kumar Misra v. State of U. P. , it has been held that a fresh full dress enquiry should be made by the competent authority to determine the age of the juvenile. The matter was sent back to the Chief Judicial Magistrate to determine the age of the applicant even after the case was committed to the Court of Sessions.
(3.) IN the case of Najmul v. State of U. P. , 1993 JIC 470, it has been held that the Session Court has got no jurisdiction to decide the question as to whether applicants are juvenile or not. The jurisdiction lies with the Magistrate before whom the case was brought. The commitment order was test aside and the matter was remanded to the Court of Magistrate to decide the question of age. In the case Gurmukh Singh v. State of U. P. , 1990 UP Crr 264, a dispute arose as regards determination of the age of the juvenile delinquent in the court of Sessions Judge which he decided on physical appearance of the appli cant. The Hon'ble Court after referring the case of Gopi Nath v. State of West Bengal, AIR 1984 SC 237, referred the matter to the Magistrate to determine the age of the delinquent.;