Dial Singh alias Gurdial Singh vs State of Pb.

S. S. Grewal, J. (Oral)

This revision petition is directed against the order of Additional Sessions Judge, Amritsar, dated 17th of September, 1993 whereby the learned Additional Sessions Judge, dismissed the application moved on behalf of the present petitioner that he is a child and his age is 151/3 years and that he be tried as per the provisions of Juvenile Justice Act, 1986 separated by a Special Court. It was further prayed that his case may be separated from his coaccused and sent for trial before the Special Court in view of Section 24 of the Juvenile Justice Act, 1986 (hereinafter referred to as the Act) and the Rules framed thereunder.

The main grievance of the petitioner is that the learned Additional Sessions Judge, had no jurisdiction to decide the question of age of the petitioner in order to decide the main question whether he was a juvenile or not at the time of the commission of the offence. Relevant provisions of Sections 2 (d) and 7 of the Act are reproduced hereunder for the sake of convenience :

"2(d) ''competent authority'' means, in relation to neglected juveniles, a Broad and, in relation to delinquent juveniles, a Juvenile Court and where no such Board or Juvenile Court has been constituted, includes any Court empowered under subsection (2) of Section 7 to exercise the powers conferred on a Board or Juvenile Court."

"7. Powers of Board and Juvenile Court :

(1) where a Board or a Juvenile Court has been constituted for any area, such Board or Court, shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act have power to deal exclusively with all proceedings under this Act relating to neglected juveniles or delinquent juveniles, as the case may be:

Provided that a Board or a Juvenile Court may, if it is of opinion that it is necessary so to do having regard to the circumstances of the case, transfer any proceedings to any Juvenile Court or Board, as the case may be:

Provided further that where there is any difference of opinion between a Board and a Juvenile Court regarding the transfer of any proceedings under the first proviso, it shall be referred to the Chief Metropolitan Magistrate or, as the case may be, the Chief Judicial Magistrate for decision, and in a case where the District Magistrate is functioning as a Board of a Juvenile Court, such difference of opinion shall be referred to the Court of Sessions, and the decision of the Chief Metropolitan Magistrate or Chief Judicial Magistrate or, as the case may be, the Court of Sessions on such reference shall be final.

(2) where no Board or Juvenile Court has been constituted for any area, the powers conferred on the Board or the Juvenile Court by or under this Act shall be exercised in that area, only by the following namely:

(a) the District Magistrate; or

(b) the Sub Divisional Magistrate; or

(c) any Metropolitan Magistrate or Judicial Magistrate of the first class, as the case may be.

(3) The powers conferred on the Board of Juvenile Court by or under this Act may also be exercised by the High Court and the Court of Sessions when the proceedings come before them in appeal, revision or otherwise."

Perusal of sub sections (2) and (3) of Section 7 of the Act shows that powers conferred on the Board or the Juvenile Court by or under the Act may also be exercised by the Sessions Court or the High Court when the proceeding comes before them in appeal or revision or otherwise. The word ''or otherwise'' appearing at the end of Section 7 (3) clearly indicates that it would be open to the Court of Sessions to exercise the powers conferred on the Board or Juvenile Court by or under this Act while conducting trial in a murder case as is the situation in the present case. In my opinion the learned Additional Sessions Judge was legally competent to decide the question of the age of the petitioner and further to decide as to whether the petitioner had attained the age of 16 years and would come within the definition of juvenile under Section 2(h) of the Act.

Faced with this situation, the learned counsel for the petitioner further submitted that the learned trial Court has erred in relying upon entry in the Chowkidara register while ignoring the school leaving certificate and the certificate issued by the Registrar Births and Deaths, Municipal Corporation, Amritsar. The latter entry was ignored on the ground that there was no evidence to connect the said entry with the petitioner inasmuch as the mother''s name of the petitioner in the certificate was Kamaljit Kaur whereas the petitioner''s mother name is Savinder Kaur wife of Harjinder Singh. It is true that Savinder Kaur had mentioned that she is also known as Kamaljit Kaur, the fact remains that in the voters list she had given her name as Savinder Kaur and not Kamaljit Kaur. In the absence of any evidence on the record that the entry in the Chowkidara register was made by person other than the Chowkidar himself, the learned trial Court was justified in relying upon the entry in the Chowkidara register and ignoring the entry in the school leaving certificate.

It was further submitted by the learned counsel for the petitioner that the learned Additional Sessions Judge. in the instant case, has not sought medical opinion regarding the age. physical and mental condition of the petitioner as contemplated under Rule 5(4) of the Juvenile Justice (Punjab) Rules, 1987 (hereinafter referred to the Rules). For the sake of convenience Rule 5(4) of the Rules is reproduced as under :

"5(4) In every case concerning a juvenile, the competent authority shall obtain a birth certificate or medical opinion regarding his age and his physical and mental conditions and when passing orders such case shall after taking into consideration the medical opinion and such other evidence as may be available, record a finding in respect of his age."

Careful perusal of Rule 5(4) indicates that it is obligatory for the Court either to obtain the birth certificate or medical opinion regarding the age, physical and mental condition of juvenile offender while passing orders to consider such medical opinion and such other evidence as may be available before recording a finding in respect of his age. Since the birth certificate was already on the record, it was not essential for the learned Additional Sessions Judge to obtain the medical opinion concerning the age, physical and mental condition of the petitioner. It is well known that medical opinion concerning the age may be obtained by conducting ossification test which itself is not a surer test and the ossification age given by the medical expert after conducting such test may vary on either side by two years in view of the opinion expressed by Dr. Modi in his Medico level Jurisprudence.

For the foregoing reasons, I do not find any merit in this petition and the same is hereby dismissed. However, in case the petitioner wants to be released on bail on the ground of his young age, he may, if so advised, move a separate application for this purpose.