JUDGMENT
D.C. Srivastava, J.
1. The prayer in this petition under Section 482 of the Code of Criminal Procedure, is for quashing the order dated 29th June, 1995, passed by the Special Judge, Jaunpur in S.-T. No. 63 of 1994, (State v. Shobh Nath), rejecting the application of the petitioner for separate trial in juvenile Court.
2. The brief facts are that the petitioner Om Prakash Sharma, inter alia, was committed to the Court of session in Case Crime No. 180 of 1993 under Sections 323, 325 and 504 I.P.C. in respect of an incident which took place on 15th July, 1993. It is said that on the date of incident the petitioner was aged about 14 years, 11 months and 11 days was, therefore, juvenile being below 16 years on the date of incident. Consequently he could not be tried with other accused and his application for separate trial by juvenile Court was wrongly rejected by the Special Judge in violation of the provisions of Section 24 of Juvenile Justice Act, 1986. It is further submitted that in the High School Certificate of the petitioner (Annexure-3) his date of birth is recorded as 5-8-1978, which was ignored by the Court below and computed from this date, the petitioner was below 16 years of age on the date of incident.
3. The petition has been contested on the ground that it is nothing but a move to delay the disposal of the trial.
4. Learned counsel for the petitioner has placed great reliance upon the copy of High School certificate of the petitioner (Annexure-3) in which the date of birth of the petitioner is recorded as 5-8-1978. It was contended that since the incident took place on 15th July, 1993 the petitioner was ajuvenile, namely, below 16 years of age on the date of incident and this material evidence was ignored by the learned Special Judge and he passed the impugned order mainly on the strength of his observation from the appearance of the petitioner’, which is an illegal approach.
5. A juvenile is defined under Section 2(b) of Juvenile Justice Act, 1986 to mean a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.
6. Thus according to this section ajuvenile is a boy who has not attained the age of sixteen years. For determing the age of the petitioner implicit reliance should not have been placed upon the date of birth recorded in the High School Certificate (Annexure-3). Learned counsel for the petitioner has, however, relied upon the pronouncement of the Supreme Court in Bhoop Ram v. State of U. P., 1989 All Cr R 276 : (AIR 1989 SC 1329) wherein it was laid down that the certificate of age recorded in the school certificate should not be brushed aside merely on the surmise that it is not unusual for parents to understate the age of their children for securing benefits to the children in their future. It was further observed in this case that no material was placed on the record to show that School Certificate was not correct. This case to my mind is distinguishable on the facts of this case. The question of age came for consideration before the Chief Judicial Magistrate, Jaunpur, who through his order dated 27th October, 1993 (Annexure-2) considered various materials on record to discredit the recorded entry in the High School Certificate. At page 4 of this Annexure, it is mentioned that School records were also summoned and in one of the School Registers the date of birth of the petitioner was recorded as 5-8-1975 but in the character register it was recorded as 5-8-1978. The medico-legal report dated 15th July 1993, was also considered by the learned Magistrate. The Kutumb Register was also examined, which was maintained by the Gaon Sabha concerned. In the medical opinion the age. of the petitioner was assessed to be about 18 years. In the Kutumb Register the date of birth of the petitioner was recorded as 10-6-1975, Considering these materials the learned Magistrate decided that the age of the petitioner was 18 years. From the appearance also the learned Magistrate observed that the petitioner was above 16 years of age. This order was not challenged in revision. The learned Special Judge also considered the above fact and material on record and concluded that the petitioner on the date of incident was not juvenile, rather he was more than 18 years of age. It is, therefore, not a case where the High School Certificate was ignored by the learned Magistrate or by the learned Special Judge. There were materials on record to indicate that different date of birth was recorded in different registers to suit the convenience of the petitioner. In these circumstances determination of age by the learned Special Judge cannot be said to be illegal.
7. Learned counsel for the petitioner next contended on the strength of the pronouncement in Makrand v. State of U. P., 1996 All Cri C 353, that a Special Judge was not empowered under Section 7(2) of Juvenile Justice Act and is not competent to hold enquiry into the question as to whether accused was a juvenile on the date of incident or not. The verdict of this case was recorded on the strength of the provisions contained in Section 7(2) of Juvenile Justice Act. However, Section 7(3) of the said Act provides that the powers conferred on the Board or Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.
8. Special Judge is also a Sessions Judge. Section 9(3) of the Code of Criminal Procedure provides that the High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. Thus the Special Judge who is also Additional Sessions Judge is included in the definition of the Court of Session within the ambit of Section 7(3) of Juvenile Justice Act. The word ‘otherwise’ occurring in Section 7(3) of Juvenile Justice Act indicates that if the question of determination as to whether a person is juvenile or not is brought before the Court of Session otherwise than in appeal, revision etc. in that case the Sessions Judge has the power of the Board or Juvenile Court constituted under the said Act. The jurisdiction of the Special Judge therefore, cannot be challenged in view of Section 7(3) of the Act.
9. It may also be mentioned that if the petitioner wishes to place reliance upon Makrand v. State of U.P. (1996 All Cri C 353) (supra) then he should have filed revision against the order of the Sessions Judge, inasmuch as the above view was expressed in a revision petition. It is equally settled view that if alternative provision is there, inherent jurisdiction under Section 482 of the Code of Criminal Procedure are rarely and sparingly be exercised by the High Court.
10. Lastly even according to High Court Certificate the date of birth of the petitioner was 5-8-1978 and the incident took place on 15-7-1993. Even if for a moment it is assumed that the petitioner was below 16 years of age on the date of incident on the basis of recorded entry of date of birth in the High School Certificate, it has further to be seen whether he was juvenile on the date when the charge was framed.
11. Section 24(1) of Juvenile justice Act provides that notwithstanding anything contained in Section 223 of the Code of Criminal Procedure, or in any other law for the time being in force, no juvenile shall be charged with or tried for, any offence together with a person who is not a juvenile.
12. The relevant date under this section is the date of framing of charge or when the trial begins. In the instant case charge was framed on 20th September, 1994. On that date, even according to the recorded entry of date of birth in the High Court certificate of the petitioner he was above 16 years of age and was thus not a juvenile on the date when the charge was framed, No such objection was raised at the time of framing of charge. The evidence is yet to be recorded. Consequently the bar of Section 24 of Juvenile Justice Act is not attracted. However, in view of specific finding of the Special Judge that even on the date of incident the petitioner was above 18 years of age, he cannot be said to be juvenile even on the date of incident.
13. There is thus no merit in this petition which is hereby dismissed. Stay order dated 25-7-1995 is vacated.