- (1.) K. N. Ojha, J. Heard Sri V. C. Mishra learned senior Counsel assisted by Sri Vivek Mishra learned Counsel for the accused- applicants, learned AGA and have gone through the record.
(2.) PREVIOUSLY Sri Gaurav Kakkar, Advocate appeared for opposite party No. 2 Mahfool, but later on, on the date of argument none appeared for opposite party No. 2 Mahfool. First Criminal Misc. Application No. 7574 of 2007 was moved by Shahzad Khan @ Shahbaz and Ahasan Khan. Thereafter they filed Criminal Revision No. 1425 of 2007 against order dated 22-3-2007 passed by learned Addl. Sessions Judge, Court No. 2 Bijnor in S. T. No. 455 of 1991 pending under Section 302/307/120 B IPC, P. S. Nazibabad, District Bijnor but both these cases were dismissed after hearing the learned Counsel for the applicants or revisionist who are applicants in this case. Thereafter this Second Application under Section 482 Cr. P. C. has been moved before this Court to quash order dated 22-3- 2007. In Criminal Misc. Application No. 7574 of 2007 accused Shahzad Khan @ Shahbaz had challenged order dated 22-3-2007 that Addl. Sessions Judge, Court No. 2, Bijnor had no jurisdiction to pass order as to whether Shahzad and Ahasan Khan appellants were juvenile or not and therefore the order dated 22- 3-2007 whereby the applicants were declared to be not juvenile, be set aside. Their application was rejected by this Court on 8-5-2007, on the ground that the learned Sessions Judge, Bijnor had transferred the case to the Court of Addl. Sessions Judge, Court No. 2, when order was passed and therefore there was no jurisdictional error and impugned order dated 22-3-2007 could not be set aside on that ground. But while disposing of first application under Section 482 Cr. P. C. it was observed by this Court in Criminal Misc. Application No. 7574 of 2007 on 8-5-2007 that the order was being passed in respect of jurisdiction only and not on merit of order dated 22-3-2009 passed by the learned Add. Sessions Judge, Court No. 2 Bijnor. Now this application under Section 482 Cr. P. C. has been moved to quash order dated 22-3-2007 on the ground of merit. Threefold arguments have been advanced by learned Counsel for the applicants. Firstly that it is the provision of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred as an Act, 2000) which will apply to the case of the applicants and not Juvenile Justice Act, 1986 (hereinafter referred as an Act, 1986 ). According to the applicants Section 20 of the Act, 2000 is retrospective and therefore the age of the accused-applicants on the date of the occurrence is to be considered as to whether they had completed the age of 18 years or not. Secondly it is argued that full fledged enquiry was not made by the Addl. Sessions Judge, Court No. 2 in respect of applicants and thirdly it is school paper which is to be relied on in comparison to the certificate given by the Doctor about the age of the accused or papers of Municipal Board etc.
(3.) BEFORE dealing with above three points of arguments advanced by learned senior Counsel for the applicants it would be proper to give a brief description of the fact of the case. According to the prosecution Mahfooz resident of village Pathanpura, Town and Police Station Nazibabad, District Bijnor lodged FIR on 17-4-1991 at 10. 05 a. m. under Section 147/148/149/324/307/302 IPC at Police Station Nazibabad, District Bijnor against five persons including applicants Ahasan Khan and Shahzad Khan @ Shahbaz containing the fact that FIR was lodged against his father Mahboob in which his father and co-accused persons were enlarged on bail by the High Court of Allahabad, nursing that bad blood on 17-4-1991 at about 8. 45 a. m. his father Mahboob, he himself and his brother Yusuf @ Pahari alongwith his brother Mahmood @ Buddhu, Qayyum and Maqsood were returning after offering namaz (prayer) of Idd, when they reached in front of the house of Babu in Mohallah Pathanpura, Yusuf Pehalwan @ Genda, applicant Shahzad @ Shahbaz, Munnu came on the way surrounded these persons, Munnu and Ahasan caused injuries to Mahmood @ Buddhu who fell down on the spot. Shahzad @ Shahbaz and Yusuf Pehalwan @ Genda caused injuries with knife, Shahzad @ Shahbaz caused injuries to Maqsood and Shahnawaz his brother. On alarm Shareef, Meenu, Tauseef @ Munna came on the spot and made challenge Mahmood @ Buddhu and Qayyum brothers of the informant died in the incident. Maqsood and Yusuf suffered serious injuries.;