ORDER
Harbans Lal, J.
1. This revision petition u/Ss. 397 r/w. 401, Cr. P. C. is directed against the order dated 29-7-2003 passed by the learned Special Judge, Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act, Alwar in Sessions Case No. 50/02 whereby the application filed by the petitioner for sending his case to the Children Court has been refused.
2. A charge-sheet for the offences Under Sections 363, 376(2)(g), I.P.C. and Section 3(2)(5) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the Act”) was filed against the petitioner and other co-accused persons wherein the allegation against him was that he along with others abducted Kumari Tinkle and committed gang rape with her. On the case being committed to the aforesaid Court for trial, charges were framed. After the conclusion of the prosecution evidence, the examination of the accused Under Section 313, Cr. P. C., they led their defence evidence. Thereafter, petitioner filed an application on 3-7-2003 before the trial Court for sending his case to the Children Court for trial. A similar application was also filed by co-accused Sardara on the same day. Both the applications were disallowed vide impugned order.
3. I have heard learned counsel for the petitioner, learned P. P. on behalf of the State and have also perused the impugned order as well as the relevant authorities cited at the bar.
4. It is an admitted fact that the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘the Act of 2000’) came into force on 1-4-2001. As per Section 2(k) of the Act of 2000 a ‘juvenile’ or the ‘child’ means a person who has not completed eighteenth year of age. It is also not disputed that no inquiry with regard to determination of age of the petitioner has been made by the competent authority or the Magistrate and the Magistrate before whom the petitioner was produced has not in exercise of the powers vested in him Under Section 7 of the Act of 2000 forwarded the petitioner along with the record to the competent authority having jurisdiction over the proceeding and instead of this committed the case to the trial Court for trial. The trial Court has also not made any inquiry with regard to the age as no such objection or application was made before that Court. It is also well settled that the trial Court was empowered/ authorised Under Section 6(2) of the Act of 2000 to conduct the inquiry in accordance with the provisions of Section 49 of the Act of 2000 with regard to the determination of age of petitioner. Sub-section (1) of Section 49 of the Act of 2000 enjoins upon the competent authority to make due inquiry about the age of the person who is brought before it and appears to be a juvenile or the child. The learned trial Court has taken the few that such an objection could not be raised at the stage of trial particularly at the fag end of the trial, though, the provisions with regard to holding due inquiry about the age of a person who appears to be a Juvenile or the child are mandatory.
5. In the instant case, petitioner has placed on record a certified copy of the bail order dated 8-5-2002 passed by the learned Addl. Sessions Judge, Behror from which it is evident that being born on 2-9-1984 the petitioner was less than 18 years of age on the date of occurrence i.e. 5-4-2002 and he appears to be a child or a juvenile. The law does not envisage trial of such an accused by the Court below. He can be tried by the Principal Magistrate, Juvenile Justice Court. Thus, the trial by the Sessions Court against a juvenile stands vitiated because of the inherent lack of jurisdiction to conduct trial against the ‘juvenile’ or the ‘child’ as has been held in the case of Raj Singh v. State of Haryana, (2000) 6 SCC 759 which was a case under the Juvenile Justice Act, 1986, but the relevant provisions being pari materia with the provisions of the Act of 2000, the law laid down therein is applicable here. The appellant in that case was born on 9-12-1974 as per the certificate issued by the Board of School Education which stood reaffirmed by another certificate produced before the Court. He was convicted Under Section 20 of the NDPS Act, 1985 with regard to an offence that was committed on 22-5-1990 which date he was less than 16 years of age and, therefore, their Lordships of the Hon’ble Apex Court held that his trial and conviction by the Sessions Court stood vitiated because Under Section 22 of the aforesaid Act, a different procedure for trial of the juvenile was provided. Their Lordships, therefore, .quashed the trial and directed that his trial should be conducted in accordance with the provisions of the aforesaid Act.
6. The trial Court has relied upon the case of Ram Deo Chauhan alias Raj Nath Chauhan v. State of Assam, 2001 Cri LJ 2902 : (AIR 2001 SC 2231) wherein it has been held that no plea of juvenility was raised either during investigation, inquiry or trial and, therefore, it was held to be an afterthought. So the review petition was dismissed on this ground. But in the instant case, it is evident that the plea of juvenility was raised even at the initial stage of bail and petitioner was granted ball on the ground of his being a juvenile. This apart, in that case there was no reliable oral or documentary evidence to prove the date of birth of the accused on the relevant date. The school register was not shown to be maintained by public servant in the discharge of his official duty or any other competent authority. It was, therefore, held that entry in the school register could not be accepted as positive proof regarding date of birth of the accused. Too much reliance could not be placed on the medical evidence as it was by no means infallible and accurate a test to indicate the exact date of birth of the person, particularly, in view of this vast country with varied latitudes, heights, environment, vegetation and nutrition etc. Thus, that case being distinguishable on facts cannot be applied to the facts of the present case and it does not help the prosecution in any way.
7. In this view of the matter, therefore, the order passed by the learned Court below cannot be sustained and deserves to be quashed so far as the petitioner is concerned.
8. Consequently, this petition is allowed. The order dated 29-7-2003 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act, Alwar is hereby quashed and it is directed that the learned Court below shall first conduct inquiry with regard to the age of petitioner Ratan Lal alias Ram Ratan and if he is found to be a Juvenile or the child, he may be forwarded along with the relevant record to the competent Court for his trial in accordance with the provisions of the Act of 2000 and if found otherwise he may proceed to decide the Sessions case as per law.