Bhupinder Singh vs State of Haryana

S. K. Jain, J

Bhupinder Singh and Pannu Ram were arrested and challaned vide FIR No 57 of 1992 under Sections 307/201/325 of the Indian Penal Code, Police Station Sadar, Yamunanagar and were brought before the Illaqa Magistrate.

An application dated 1891992 was moved before him on behalf of Bhupinder Singh accused alleging that he being below 16 years of age, was a juvenile and. therefore, he be, forwarded alongwith record to the Juvenile Court for trial under the Juvenile Justice Act, 1986 (hereinafter referred to as the Act). The learned Illaqa Magistrate after. inquiring into the matter dismissed the said application on 2231993 and committed the case to the Court of Sessions.

When Bhupinder Singh, accused was brought before the learned Additional Sessions Judge, Jagadhri another identical application was moved on his behalf. The learned Additional Sessions Judge after obtaining the reply to the said application and hearing the learned counsel for the parties, held that the learned Magistrate after full application of his mind to the material before him had formed and recorded his opinion under Section 8 of the Act that the accused was not under 16 years of age and was not a juvenile and had rightly dismissed the application The learned Additional Sessions Judge, vide his order dated 2951993 dismissed the application. it is that order of the learned Additional Sessions Judge, which has been impugned in this revision petition by the accused Bhupinder Singh and which requires my examination of its correctness, propriety, regularity and legality.

Notice of motion was issued to the Advocate General, Haryana and Mr. N. S. Bhinder, District Attorney, Haryana, has appeared.

I have heard the learned counsel for the parties in motion hearing.

Admittedly, after his application was dismissed by the Illaqa Magistrate on 2231993, accused Bhupinder Singh did not challenge that order and, therefore, it had become final. His second application before Additional Sessions Judge, Jagadhri was not maintainable. The learned Illaqa Magistrate before whom Bhupinder Singh alongwith his coaccused was brought by the police was not empowered to exercise the powers of the Board or a Juvenile Court under the Act. He had to form an opinion as to whether Bhupinder Singh who was brought before him, was a juvenile. He had to record such an opinion under Section 8 of the Act, which is reproduced below for ready reference :

"Procedure to be followed by a Magistrate not empowered under, the Act :

(1) When any Magistrate not empowered to exercise the powers of a Board or a Juvenile Court under this Act is of opinion that a person brought before him under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, he shall record such opinion and forward the juvenile and the record of the proceeding to the competent authority having jurisdiction over the proceeding."

(2) xx XX xx xx

On the application moved on behalf of Bhupinder Singh, the learned lllaqa Magistrate (Committing Magistrate) enquired into the matter, obtained reply to the application from the State, considered documents, viz School Leaving Certificate, affidavit of the complainant, birth certificate issued from the office of Additional District Registrar and affidavit of the father of the accused Bhupinder Singh and then formed and recorded his opinion that Bhupinder Singh was not below 16 years of age and not a juvenile.

Learned counsel for the petitioner has argued that the Committing Magistrate could not have resorted to an enquiry himself because he had no authority or jurisdiction to hold an enquiry with regard to the age of Bhupinder Singh and, therefore, had, exceeded his jurisdiction inquiring into the matter and recording a finding with regard to the age of the petitioner. I regret my inability to agree with this argument of the learned counsel. As seen hereinbefore, under Section 8 of the Act, the Magistrate had to form an opinion as to whether a person brought before him was a juvenile and if he formed that opinion, then he has to record such opinion and forward the juvenile and the record of the proceeding to the competent authority having jurisdiction over the proceeding In order to form an opinion, the learned Magistrate naturally had to hold some sort of enquiry. Herein this case, it is evident that Bhupinder Singh had taken part in the said enquiry. His father had filed an affidavit with regard to his age. Other material, such as, birth certificate and school leaving certificate were also proved on the record. He also did not challenge the order dated 2231993 passed by the Judicial Magistrate rejecting his application. Had he been found less than 16 years of age by the Magistrate, he would have been happy, but when the result of the inquiry, in which he had taken part, was against him, he filed another identical application before the learned Additional Session Judge

I can possibly have no quarrel with proposition of law laid down in Krishna Bhagwan v. State of Bihar, AIR 1989 Patna 217, to the effect that a plea that the accused in question was a juvenile within the meaning of the Act can be entertained at the appellate stage. But at the same time it should not be overlooked that many accused persons who have been tried and convicted for serious offences like murder, dacoity and rape may take this plea in the appeal just to get rid of the sentence of rigorous imprisonment imposed against them, although there are hardly any material on the record in support of the plea that such accused persons on the date of commission of the offence were juvenile within the meaning of the Act. There is nothing on the record to show that either in the first information report itself the accused herein, was described as below 16 years of age or at any stage prior to the decision of his application by the Magistrate his age had been determined or admitted to be below 16 years on the date of occurrence. Rather, as mentioned hereinbefore, the learned Magistrate after holding a proper inquiry had formed and recorded his opinion that the accused was not less than 16 years of age and was not a juvenile.

I am in respectful agreement with the proposition of law laid down by the Supreme Court in Gopinath Ghosh v. The State of West Bengal, 1984(2) RCR 444 to the effect that the plea that the accused was minor could be raised for the first time before the Supreme Court and that plea cannot be rejected on technical grounds as it would result in thwarting the benefit of the provisions of the Act to the minor, if he was otherwise entitled to it. In this judgment it has also been held that if necessary, the Magistrate may call upon the accused also to lead evidence about his age. Thereafter, the Magistrate my proceed in accordance with law.

In present case, as mentioned hereinbefore, the Magistrate had adopted the procedure as mentioned above properly. He had called upon the accused to lead evidence about his age and after considering the same and other material on record had recorded his opinion that the accused was not below 16 years of age and was not a juvenile.

In view of the above discussion, I do not find any incorrectness, impropriety or irregularity, muchless any illegality in the impugned order is confirmed. The revision petition has no merit and is dismissed in limine.