P.K.SARIN, J. - (1.) THIS criminal revision application is directed against the order dated 30 -11 -1996 passed by 3rd Additional Sessions Judge, begusarai, in Sessions Trial No.537 of 1995 by which he has rejected the claim of the petitioner that on the date of occurrence the petitioner was a juvenile.
(2.) THE petitioner is an accused in nayagaon P. S. Case No.18 of 1995 for the offence under Sec.302/34 of the indian Penal Dulari Devi Versus State Of Bihar Code (hereinafter referred to as the Code) and 27 of the Arms Act. The first information report of the case (Copy at Anncxure - 1) was recorded on 9 -5 -1995. The incident also took place on 9 -5 -1995. It appears that the petitioner moved an application before the learned Additional Sessions Judge, that his date of birth is 13. -1 -1981 as such he was juvenile on the date of occurrence of the case. The learned Additional Sessions judge held enquiry in respect of the claim made by the petitioner. He called for a report by a Medical Board and took evidence of the parties on the issue. The Medical Board assessed the age of the petitioner to be in between nineteen -twenty years on examining him on 11. -6 1996. The learned Additional sessions Judge, on consideration of the evidence, came to the conclusion that the petitioner was not a juvenile on the date of occurrence and, accordingly, rejected his application by the impugned order.
(3.) THE learned Counsel for the petitioner has contended that the learned Sessions Judge had no jurisdiction to enquire and determine the age of the petitioner when the petitioner had made a claim that he was a juvenile. It has been contended that the age of a juvenile can only be determined by a juvenile Court under Sec.32 of the juvenile Justice Act (here in after referred to as the Act ). It is contended that the learned Magistrate ought to have referred the case of the petitioner to the Juvenile Court for determination of his age under Sec.32 of the act and ought not to have determined the age himself. It has been contended that if the case had been referred to the juvenile Court for determination of age under Sec.32 of the Act the petitioner would have got the right of appeal and revision if the order was passed against him by the Juvenile court and the petitioner had been deprived of that right by passing of the order by the learned Additional Sessions judge himself. Thus, the question for consideration, in view of the submissions made by the learned Counsel for the petitioner, is whether a Court is bound to refer the case of a person for determination of his age under Section 32 of the Act to a Juvenile Court if that person raises a claim that he was juvenile on the date of occurrence. Under Sec.5 of the Act Juvenile courts have to be constituted for different areas by the State by Notification. The powers of the Board and Juvenile court under the Act have been provided in the provisions of the section 7 of the Act. Sub -section (2) of section 7 further provides that where no Board or Juvenile Court has been constituted for any area the powers conferred on the Board or the Juvenile court by or under the Act shall be exercised in that area by the District magistrate or the Subdivisional magistrate or any Metropolitan magistrate or Judicial Magistrate of the first class, as the case may be. Thus, in absence of constitution of Juvenile court under Notification by State government under Sec.5 of the Act the Judicial Magistrate (which includes chief Judicial Magistrate as well) are empowered to exercise the powers of juvenile Court in their respective areas. Sec.24 of the Act forbids joint trial of juvenile and person not a juvenile and it has been provided that the Court taking cognizance shall direct separate trial of the juvenile and the other person.;