JUDGMENT
P.K. Sinha, J.
1. This revision application is directed against the order dated 28-9-2001 recorded by the Additional Chief Judicial Magistrate, Siwan in Maharajganj (G.B. Nagar) P.S. Case No. 26 of 1999 as well against the order dated 19-4-2002 recorded by 7th Additional Sessions Judge, Siwan in Cr. Appeal No. 57 of 2001 by which the aforesaid order of the learned lower Court was confirmed.
2. The brief history of the case is that the petitioner was an accused in the aforesaid case which was also under Section 302 of the Penal Code, allegedly having given knife blow to the deceased. The petitioner took a plea that on the date of occurrence he was a juvenile, hence should be given benefits of the Juvenile Justice Act, 1986 (“the Act” in short), the date of occurrence being 3-3-1999. As will appear from the annexed order of the learned Additional Chief Judicial Magistrate, Siwan dated 28-9-2001 that the enquiry under Section 32 of the Act was conducted by the then Chief Judicial Magistrate, Siwan who had held, by order dated 28-7-1999, the petitioner not to be a juvenile. Against that, Cr. Appeal No. 59 of 1999 was heard by the Sessions Judge, Siwan who directed the lower Court to ascertain the age by constituting a Medical Board and to pass a fresh order obtaining the medical report, giving opportunity to the defence also to adduce evidence. That was done by the Additional Chief Judicial Magistrate, Siwan who by order dated 7-6-2000 again declared the petitioner not to be a juvenile on the date of occurrence. The consequent Criminal Appeal No. 44 of 2000, heard by the 7th Additional Sessions Judge, Siwan was allowed by order dated 22-9-2000, remanding back the matter to the learned lower Court with a direction to record a fresh order in presence of the accused, after giving him proper opportunity to be heard. This was how the impugned order dated 28-9-2001 was passed by the learned Additional Chief Judicial Magistrate.
3. From the aforesaid order it appears that 4 witnesses were examined on behalf of the petitioner in course of enquiry whose evidences were taken into account. The Court also examined Court witnesses No. 1, Headmaster of a School where the petitioner was a student who said that according to the Admission Register the date of birth of the petitioner was 24-12-1982. Another Court witness was a teacher in another school were also the petitioner had studied. According to the Admission Register of this School the date of birth was same, i.e. 24-12-1982 also supported by the transfer certificate granted by the earlier school. The learned Court examined the evidences that had come on the record and held, believing the entries made in the admission registers, that the petitioner on the date of occurrence was above 16 years of age, hence not a juvenile under the Act. The learned 7th Additional Sessions Judge, Siwan who heard appeal against the order of the Additional Chief Judicial Magistrate, Siwan concurred with the findings arrived at by the learned lower Court which did not give more importance to the opinion of the Medical Board. This matter when came up for revision before a bench of this Court, presided over by a single Judge, the bench recorded in the order dated 25-6-2000 that the learned Counsel for the petitioner had submitted that though the offence was committed when the Juvenile Justice (Care and Protection of Children) Act, 2000 (“the Act of 2000” in short) was not in force, still the petitioner would be governed by the said Act. In view of the importance of the matter, the case was referred to a Division Bench which is how this matter came up before us.
4. All the parties in this revision have been heard.
5. Learned Counsel for the petitioner has submitted that under orders of the Court of Sessions recorded earlier, a Medical Board was constituted which opined that on 7-9-1999 the petitioner was 16-17 years old. It was argued that there was no reason to disbelieve that finding of the Medical Board, according to which on 1-4-2001, when the Act of 2000 came into affect, the age would have been between 17 years 7 months to 18 years 7 months. It was submitted that in such a situation, fluctuation (plus-minus) of two years had to be given and, while considering whether or not the petitioner was a juvenile under a beneficial Act, the fluctuation should be in favour of the accused. This view if accepted, it was argued, the petitioner would be below 18 years of age on the date Act of 2000 came into force and since a proceeding against the petitioner was pending on that date, by virtue of Section 20 of the Act of 2000 the petitioner was entitled to the benefits of the new Act. However, it was admitted that if the date of birth as coming out in the admission Registers was accepted, then on 1-4-2001 the petitioner’s age would be above 18 years.
6. Shri G.P. Jaiswal, learned Additional Public Prosecutor, argued that in view of a decision of this Court, by a Division Bench, in the case of State of Bihar v. Arnit Das; 2003(2) PLJR 553, the Act of 2000 had no retrospective effect and that even if proceeding was pending from before but if the accused was not a juvenile on the date the new Act came into force, i.e., not below 18 years of age, the benefits of the Act of 2000 could not be given to him.
7. Learned Counsel for Opposite Party No. 2 argued that when two Courts below had given concurrent finding believing the entries in the admission registers then without finding that those two orders were purverse or that the findings were arrived at not on materials on record, this Court should not interfere in such finding about the fact, in a revision.
8. The learned Additional Chief Judicial Magistrate in his order has given good reasons as to why the date of birth as given in School Register was accepted, the appellate Court also holding the same view. I do not find any reason to disagree with the views held by the two Courts below holding that since the date of birth of the petitioner was 24-12-1982, then on 1-4-2001 when the Act of 2000 came into force he was definitely over 18 years of age in the case of Arnit Das (supra) in which one of us was a member of the bench, the applicability of Section 20 of the Act 2000 was considered in its various aspects, also taking into account Section 3 of the Act 2000. In that case the decision of the Apex Court in the case of Umesh Chandra v. State of Rajasthan; (1982) 2 SCC 202, was also considered. It was held that an accused could be granted the benefits of the Act of 2000 if he had been a juvenile within the meaning of the Act of 2000 on the date it came into force, if on that day there was a proceeding pending against that accused in any Court. This Court was of the opinion that both the aforesaid conditions must be fulfilled before benefit under Act of 2000 could be given to an accused.
9. So far the argument about fluctuation of age by two years is concerned, that benefit can be given in a case when determination of age is mainly based on ossification test. But when a Court of competent jurisdiction in an enquiry about age of an accused comes to a conclusion about his date of birth based on documentary proof such as admission register of the school, there is no question of applying the principle of fluctuation of two years in the age.
10 In view of what has been discussed above, I do not find that the conclusions arrived at by the two Courts below need any interference by this Court.
11. This revision, accordingly, is dismissed.