- (1.) This revision-petition under S. 397, Cr. P.C. has been filed by the petitioner on 11-8-2003 claiming himself to be a juvenile under the provisions of the Juvenile Justice (Care and Protection of Children) Act. 2000 (hereinafter referred to as the Act of 2000) with a prayer that the order dated 25-6-2003 passed by the learned Addl. Sessions Judge (Fast Track), Parbatsar, District Nagaur by which the application of the accused-petitioner filed under S. 49 of the Act of 2000 for the purpose of the determination of age was rejected, be quashed and set aside.
(2.) It arises in the following circumstances : i) That on 31-1-2002 one Abdul Salam lodged a written report with the Police Station, Parbatsar, District Nagaur about the murder of Sikander and an F.I.R. under Ss. 302, 201/34 was chalked out and during investigation the accused-petitioner was got arrested on 9-3-2002 and after investigation the police submitted challan on 30-4- 2002 against the accused-petitioner treating him to be of 18 years of age and one more other accused-Yukub for the offence under Ss. 302/34, I.P.C. in the Court of the A.C.J.M., Parbatsar. Thereafter the case was committed to the Court of Session. After being commitment charges for the offence under Ss. 302/34, 201/34, I.P.C. were framed against the present petitioner and one more accused. ii) During trial of Sessions Case No. 22/2003 (old No. 25/2002), the present ac- cused-petitioner-Munshi Khan filed an application under S. 49 of the Act of 2000 on 8-1-2003 with a prayer that on the date of incident i.e. on 28-1 -2002 he was below the age of 18 years as in Transfer Certificate dated 2-10-2001 issued by Smt. Mangla Devi Sarda Govt. Upper Primary School, Kuchaman Shahar (Nagaur) the date of birth of the accused-petitioner was shown as 17-1-1985, hence he should have been treated as juvenile and should have been tried in Juvenile Court and he further made a request that an inquiry in respect of his age be conducted as per provisions of Act of 2000. iii) That the learned Additional Sessions Judge (Fast Track), Parbatsar, District Nagaur through his order dated 25-6-2003 rejected that application inter alia holding (i) that the original certificate dated 2-10- 2001 had not been produced through which the accused-petitioner took admission in the 6th Class for the first time on 15-7-1998 but it is not clear that how for the first time he was admitted in the 6th Class and original certificate was not produced, (ii) prior to get admission in by Smt. Mangla Devi Sarda Govt. Upper Primary School, Kuchaman Shahar (Nagaur) it has not been mentioned that in which school, the accused-petitioner studied and if studied certificates have not been produced, (iii) that at the time of hearing of the S.B. Criminal Misc. Bail Application No. 3496/2002 by this Court, why not the transfer certificate dated 2-10-2001 issued by Smt. Mangla Devi Sarda Govt. Upper Primary School, Kuchaman Sahar (Nagaur) was produced, therefore, the learned Additional Sessions Judge (Fast Track), Parbatsar (Nagaur) declined to make further inquiry in respect of the age of the accused-petitioner. iv) That aggrieved from the order dated 25-6-2003 passed by the learned Additional Sessions Judge (Fast Track), Parbatsar (Nagaur), the accused-petitioner has filed this petition and has assailed the impugned order on various grounds and the main ground of the accused-petitioner is that since from the Transfer Certificate dated 2-10-2001 issued by Smt. Mangla Devi Sarda Govt. Upper Primary School, Kuchaman Shahar (Nagaur) the date of birth of the accused-petitioner was 7-1 -1985 and thus on the date of incident i.e. on 28-1- 2002 he was below the age of 18 years and that certificate have prima facie established the date of birth of the accused-petitioner and since sufficient material was placed before the learned Additional Sessions Judge, it was the bounden duty of the Court to make further inquiry regarding his age and since this step was not taken by the learned Additional Sessions Judge and in absence of that order dated 25-6-2003 passed by the learned Additional Sessions Judge was per se illegal and without jurisdiction should be set aside.
(3.) I have heard and perused the challan papers etc.;