ORDER
M.B. Sharma, J.
1. This revision petition is directed against the order dt. July 17, 1985, made by the learned Additional Sessions Judge, Gangapur City. Under the aforesaid order, the learned Additional Sessions Judge held that the accused-petitioner Chiranji does not appear to be 16 years of age and therefore it is not necessary to send him to the Children Court for trial of the offence of which he has been charged.
2. The S.H.O., Police Station Karauli, on the basis of the F.I.R. No. 203/1984 dt. Aug. 21, 1984 filed a charge-sheet against the accused petitioner and two others for the various offences including the offence Under Section 302, IPC. The learned Judicial Magistrate, Karauli committed the accused-persons to the learned Sessions Judge, Sawaimadhopur to face trial Under Section 302/34, IPC and other sections of the Penal Code. The accused-petitioner raised an objection before the learned Additional Sessions Judge that he was a child and as such he should be sent to the Children Court. The learned Additional Sessions Judge made inquiry in respect of the age of the accused-petitioner and held that the accused-petitioner failed to prove that he was child below 16 years of age.
3. The contention of the learned Counsel for the petitioner is that on material on record, it was established that the accused-petitioner is 16 years of age or less and as such he is a child within the meaning of the provisions of the Rajasthan Children Act, 1970 (for short, the Act) and the only competent Court was the Children Court who could have tried the accused. It was stated by him that the Children Court only could have made the inquiry into the question whether the petitioner was child within the meaning of Section 2(d) of the Act and the learned Additional Sessions Judge, could not have made the said inquiry.
4. I have considered the contention of the learned Counsel for the petitioner. The occurrence is said to have taken place on Aug. 20, 1984 at about 7.30 p.m. near village Gadka Ki Chowki, Mauja Gadkipura. The accused-petitioner Chiranji was arrested on Sept. 2, 1984. In the arrest memo the age of the accused petitioner has been recorded as 20 years. ‘Child’ has been defined in Section 2(d) of the Act According to Section 2(d) of the Act ‘Chtldt means a boy who has not attained the age of sixteen years and a girl who has not attained the age of eighteen years. The ‘Children’s Court’ has been defined in Section 2(e) of the Act which means a Court constituted Under Section 2(i) ‘delinquent child’ means a child who has been found to have committed an offence.
5. Under Section 8 of the Act when any Magistrate not empowered to exercise the powers of a Board or a Children’s Court under this Act is of opinion that a person brought before him under any of the provisions of the Act (otherwise than for the purpose of giving evidence) is a child, he. shall record such opinion and forward the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding. The competent authority to which the proceeding is forwarded under Sub-section (1) of Section 8 of the Act shall hold the inquiry as if the child had originally been brought before it. Under Section 24 of the Act notwithstanding anything contained in Section 239 of the Code of Criminal Procedure or in any other law for the time being in force no child shall be charged with or tried for any offence together with a person who is not a child. Under Section 32 of the Act where it appears to a competent authority that a person brought before it under any of the provisions of the Act (otherwise than for the purpose of giving evidence) is a child, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a child or not stating his age as nearly as may be. It will therefore be clear from the above referred to provisions of the Act that it is the only Children Court who is authorised in case of a delinquent child_to have inquired in the matter in respect of age and to give finding as to whether the person is child or not. In Rohtas v. State of Haryana , one Rohtas was being prosecuted Under Section 302 of the Penal Code for having caused the death of one Subhash on Dec. 23,1974. The trial proceeded before the Sessions Judge and after the evidence was concluded the case was adjourned to the 5th May, 1978 for recording the statement of the appellant. At this stage it appears to have been pointed out to the Sessions Judge that he had no jurisdiction to try the appellant as the appellant happened to fall within the provisions of the Haryana Children Act, 1974. Thereafter, the Sessions Judge remitted the matter to the committing Magistrate directing him to hold an enquiry as to whether or not the appellant Rohtas was a child within the meaning of the provisions of the Haryana Act and after arriving at a finding that the appellant was a child, the Magistrate proceeded to try the case in accordance with the provisions of the Haryana Act. The brother of the deceased filed a revision petition before the High Court for quashing [ (he proceedings against the appellant on the ground that the Sessions Judge and the committing Magistrate were wrong in holding that the case of the appellant fell within the purview of Section 4 of the Haryana Act. The High Court took a view that such of the provisions of Code of Criminal Procedure which were in direct conflict with the Haryana Children Act will prevail. The Supreme Court referring to Section 5, held that Section 5 carves out a clear exception to the provisions of the trial of an offence under any special or local law for the time being in force or any speical jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. The Supreme Court set aside the order of the High Court and the order of the Sessions Judge was restored. It was held that the appellant will be tried by the Magistrate in accordance with Haryana Act. In Umesh Chandra v. State of Rajasthan a case arising from Rajasthan under the Act, it was held that the relevant date for the applicability of the Act is the date on which the offence takes place. In view of the proposition of law laid down in Rohtas’s case (1979 Cri LJ 1365) (supra) it can no longer be disputed that in a case of child as defined Under Section 2(d) of the Act, he can only be tried for the “offences including the offence Under Section 302 by the Children Court. But the question is still as to whether the Sessions Judge is not competent to make any inquiry in regard to the age of the accused, if a plea is raised that the accused is a child within the meaning of Section 2(d) of the Act and he must refer the case to the learned Children Court when the objection is raised on behalf of the accused and to determine the question of age of the accused ? Either Under Section 8 or Section 32 of the Act only when the person is brought before the Magistrate or the Children Court as the case may be, the Magistrate Under Section 8, if he is of the opinion, that the person so brought before him is a child, shall record such opinions and forward the childs and the record of the proceeding to the competent authority having jurisdiction over the proceeding. Under Section 32 of the Act, the competent authority will have to inquire into the matter, take such evidence as may be necessary and thereafter record its finding that the person is a child or not. There is no provision under the Act that the accused who is produced before the Sessions Judge and if he takes a plea that he is a child within the meaning of Section 2(d) of the Act, the Sessions Judge cannot inquire into the matter and must refer the accused to the Children Court, who alone thereafter, can make an inquiry into the question of age of the accused and thereafter record a finding whether he is a child or not. To my mind, merely because a plea has been raised that the accused is a child within the meaning of Section 2(d) of the Act before the Sessions Judge, it cannot be said that the Sessions Judge cannot make an inquiry into the matter on the question of age of the accused and must refer the accused to the Children Court who alone can make such inquiry. Such an interpretation, if taken, may lead to serious consequences. There may be cases where prima facie there appears no material and still the accused raises an objection that he is a child, though he may be about 21 years of age, yet, in that case, if such an interpretation is taken, the Sessions Judge is bound to refer the case to the Children Court for adjudication on the question of age of the accused that he is a child or not. Even in the case of Rohtas (Supra) the Sessions Judge had referred the matter to the committing Court for inquiry and not to the Children Court. Therefore, the Sessions Judge is competent to make the inquiry into the matter on the question of age whether the accused is a child or not within the meaning of Section 2(d) of the Act. In case a finding is recorded that the accused is a child within the meaning of Section 2(d) of the Act, then the Sessions Judge will have to send the accused to the Children Court which alone has the jurisdiction in the matter, and the Sessions Judge will have no jurisdiction to try the accused.
6. In the instant case when the plea was raised before the Sessions Judge that the accused petitioner Chiranji was 16 years or less, the Sessions Judge inquired in the matter, recorded evidence of Prabhu, father of accused-petitioner Chiranjilal as well as of the doctor and thereafter recorded a finding that the accused is not a child. I have been taken through the evidence recorded by the learned Sessions Judge so far as Prabhu, father of the accused petitioner is concerned, he has not been relied upon because he does not say when Chiranji was born. So far as the transfer certificate from the School is concerned, even Prabhu does not say that it was the correct date of birth. As per the school certificate the accused-petitioner is 12 or 13 years of age whereas, according to Chiranji he is 15 years of age. The doctor was examined and on the basis of X-ray report, the doctor has stated that the age of the accused petitioner in Dec. 1984 was 16 to 18 years. It has been stated by the radiologist that epiphysis of elbow unite at the age of 16. On the basis of material on record, the learned Sessions Judge has recorded a finding that the accused was not a child within the meaning of Section 2(d) of the Act. It cannot be said that such a finding could not have been recorded. It cannot therefore be said that the accused-petitioner is a child within the meaning of Section 2(d) of the Act and as such he should have been tried only by the learned Children Court.
7. There is no force in this petition. It is hereby dismissed.
