MOHINI KAPOOR, J. - (1.) THE petitioner is accused of offence under Section 376, IPC. The incident is of 24th October, 1987 and the report of the same was lodged on 31st Oct., 1987 at the Police Station Mandawar and the petitioner was arrested only on 6th January, 1987.
(2.) THE prosecutrix in the case is Sushila who, at the time of commission of the offence was 11 -13 years of age according to the Medical Report. She was examined medically and the Medical Report corroborates the commission of the offence. The main argument, which is urged on behalf of the petitioner is that he was 15 -1/2 years of age at the time when the offence was committed. In support of it, a certificate of age, obtained from the school where he had studied has been produced. It has also been mentioned in the application that the age certificate was produced before the Sessions Judge but no reference has been made in its order, rejecting the bail of the petitioner.
(3.) UNDER Section 437, Cr.P.C. there is a provision that if the accused is below 16 years of age and there are reasons for believing that he has committed offence punishable with death or imprisonment for life even then he can be released on bail. Though, it is to be considered in the facts and circumstances of the case, it can also be said that the accused is under 16 years of age has to be tried by the Juvenile Magistrate under the Juvenile Justice Act and considering the provisions and all the facts and circumstances, it can be said that the petitioner should ordinarily not be detained in judicial custody.;