GOYAL, J. - (1.) THIS petition under Section 482 Cr. P. C. is directed against two orders dated 8. 2. 2002 and 12. 11. 2002.
(2.) IN brief the facts of the case are that one F. I. R. No. 425/2001 was registered at police station Hindaun City implicating the accused petitioner, his mother and brothers for offences under various Sections of I. P. C. including Sec. 302 I. P. C. During investigation, the accused petitioner was arrested on 14. 8. 2001 treating him above the age of 18 years. After completion of the investigation, charge-sheet came to be filed and case was committed to sessions, which came up for trial before the learned Additional Sessions Judge, Hindaun City. Sessions Case No. 112/2001 was registered. An application for bail u/sec. 439 Cr. P. C. was moved on behalf of the accused petitioner. Learned Additional Sessions Judge vide order dated 13. 1. 2001 directed the learned Additional Chief Judicial Magistrate to conduct an inquiry about the age of the accused petitioner. IN compliance of this order, the learned Additional Chief Judicial Magistrate conducted inquiry and vide the first impugned order dated 8. 2. 2002 came to this conclusion that the accused petitioner is not below the age of 18 years. Again an application on behalf of the accused petitioner was moved on 26. 10. 2002 before the learned Additional Sessions Judge (Fast Track), Hindaun City with a prayer that his date of birth is 1/1/1986, hence he was below 18 years of age and learned Additional Chief Judicial Magistrate did not consider the entire evidence. It was prayed vide this application that the order dated 8. 2. 2002 be set aside and the case be sent to the Juvenile Justice Board. The learned Judge having heard came to this conclusion that inquiry regarding the age has already been conducted and no revision was filed against the order dated 8. 2. 2002. Considering the accused petitioner above 18 years of age, this application was dismissed. Learned counsel for the accused petitioner contended that the learned Additional Chief Judicial Magistrate had no jurisdiction to determine the age and the conclusion drawn by him was not just as he failed to take into consideration the oral as well as documentary evidence available on the record and further no opportunity to cross-examine the witnesses examined on behalf of the prosecution was given. It was also contended that the learned Additional Sessions Judge also committed illegality when he failed to refer the case to the Juvenile Justice Board for determination of age and for trial. Reliance is placed upon one judgment of this Court delivered in Balbir Singh vs. The State of Rajasthan (1 ). Per contra learned Public Prosecutor and learned counsel Shri A. K. Gupta supported the impugned orders and contended that since no revision against the impugned order dated 8. 2. 2002 was filed, that order has become final. It was also contended that learned Additional Chief Judicial Magistrate had power to make inquiry regarding the age of the accused petitioner under Section 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short `the Act, 2000' ). It was also argued that appreciation of evidence is not permissible in exercise of power under Section 482 Cr. P. C. I have considered the rival submissions. While dealing with the provisions of Juvenile Justice Act, 1986, it was held as under in para 10 of the judgment delivered in Balbir Singh's case (supra ). (i) For the determination of age, to decide whether an accused is a juvenile or not, an inquiry is a must to be made by the competent authority by giving an opportunity to the parties to adduce oral and documentary evidence and also a right to cross-examine to the opposite party; (ii) The inquiry can be made by a Magistrate if he is empowered to exercise the power of the Board or Juvenile Court, otherwise he will have to forward the accused and the record of the proceedings to the Juvenile Court having jurisdiction over the proceeding, (iii) The High Court or the Court of Sessions can exercise the power of the Board or a Juvenile Court, which also includes an inquiry for the determination of age of the accused, when the proceeding comes before them in a appeal, revision or otherwise, so, after commitment of the case, the concerned Court of Session can determine the age of the accused to decide whether he was a juveile or not?
(3.) SUB-section 2 of Section 6 of the Act, 2000 provides that the powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Sessions when the proceeding comes before him in appeal, revision or otherwise. In view of such specific provisions, it seems unnecessary in the instant case to decide the question as to whether the learned A. C. J. M. was competent or not to determine the age of the accused petitioner as the case had already been committed to the Court of Sessions and the Sessions Case No. 112/2001 was pending before the learned Additional Sessions Judge (Fast Track), Hindaun City. Therefore, in view of SUB-section 2 of Section 7 of the Act, 2000, the learned Additional Sessions Judge was empowered to hold the inquiry regarding the age of the accused petitioner and instead of directing the learned A. C. J. M. learned trial Judge himself should have conducted this inquiry. Now, question is as to what order should be passed in the instant case? A perusal of the order dated 8. 2. 2002 goes to show that two witnesses namely, Head Master Sohan Lal and Khairati, father of the accused petitioner were examined on behalf of the accused petitioner and two witnesses Hasmuddin and Zafruddin were examined on behalf of the prosecution. It is evident that no opportunity to cross-examine the prosecution witnesses was given to the accused petitioner. It is also evident that statement of the Head Master Sohan Lal and three documents Ex. 1 to Ex. 3 issued by the Government Senior Secondary School, Hindaun City were not considered by learned A. C. J. M. According to this evidence, the date of birth of the accused petitioner was 1. 1. 1986 and this incident according to prosecution took place on 16. 7. 2001. Thus, according to this evidence, the accused petitioner was below 16 years of age at the relevant time. The age of the accused petitioner according to Dr. Ram Lal Meena was found to be above 20 years. An objection was raised on behalf of the accused petitioner that Medical Jurist Sh. Ram Lal Meena was in collusion with the complainant party, hence Medical Board was constituted and in the opinion of the Medical Board, the bonny age of the accused petitioner was found to be between 16 to 18 years. But the learned A. C. J. M. did not take into consideration the opinion given by the Medical Board also. The learned A. C. J. M. mainly based his findings on the basis of the age of the accused petitioner as stated in the Voters-list and on observation of his physical appearance in the Court. Thus, the learned Magistrate neither allowed an opportunity to cross-examine the witnesses nor considered the material evidence available on the record. ;