Ganesan vs Inspector of Police, Foreskae Estate Madras

Arunachalam, J.—This is an application filed u/s 482 of the Code of Criminal Procedure to direct the second Additional Sessions Judge,

Madras to hold an enquiry to ascertain the age of the Petitioner, who is accused in S.C. No. 24 of 1989 on the file of the said Court. The

Petitioner is the sole accused in S.C. No. 24 of 1989 on the file of the Second Additional Sessions Judge, Madras. The offences alleged against

him are punishable under Ss. 302 , 448 and 392 of the Indian Penal Code. The occurrence is stated to have taken place on 22-8-1988.

According to the Petitioner on the date of occurrence, he was a juvenile, aged about less than 16 years. The Petitioner appears to have preferred a

petition before the trial Judge to fix his age. The trial Judge directed the Radiologist, attached to the Government Roya-pettah Hospital to examine

the Petitioner. Radiologist, expressed his opinion that the Petitioner is aged about 17 years. Based upon the said report, the trial Judge fixed the

age of the Petitioner as 16 years and 4 months.

Mr. R. Sankara Subbu, learned Counsel for the Petitioner contends that the said Radiologist had not been examined before the Court and an

opportunity was not provided to the Petitioner to cross-examine the Radiologist. Further it is his grievance that the Petitioner was not permitted to

lead evidence to prove his age, as less than 16 years. I have heard Mr. Shanmugha Sundaram, learned Additional Public Prosecutor appearing for

the Respondent. A perusal of the order made by the trial Judge in S.C. No. 24 of 1989 (Crl. M.P. No. 1374 of 1989) shows that the Petitioner

had not filed any document in proof of his age. Learned Counsel for the Petitioner also contended that on the date of passing of orders in Crl. M.P.

No. 1374 of 1989, he prayed for an opportunity for examining witnesses on his side to establish that the Petitioner was less than 16 years. The trial

Judge has passed an order that inspite of several opportunities furnished to the Petitioner to produce oral and/or documentary evidence, he did not

utilise the opportunity and therefore there was no reason to further adjourn the proceedings. The orders of the trial Judge in the adjournment

petition as well as in the main petition certainly indicate that the Petitioner had not been diligent in letting in evidence about his age. It is now brought

to my notice by the learned Additional Public Prosecutor that along with the charge-sheet, the transfer certificate of the Petitioner issued by Janaki

Ramachandran Kalalaya English School has been filed, which indicated the date of birth of the Petitioner as 7-7-1968 and if that be so, the

Petitioner had completed 19 years and was running the 20th year. This certificate does not appear to have been taken note of by the trial Judge.

Section 32 of the Juvenile Justice Act (Act 53 of 1986) contemplates that the competent authority making due enquiry as to the age of the person

brought before it, otherwise than for the purpose of giving evidence, for that purpose should take such evidence as may be necessary and record a

finding whether the person is a juvenile or not, stating his age as nearly as may be. Once the competent authority had determined the age, it shall

not be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order had been made, was not a

juvenile, and the age recorded by the competent authority to be the age of the person so brought before it shall, for the purpose of the Act, be

deemed to be the true age of that person. This has been made clear by Section 32(2) of the Act. The trial Judge cannot merely record a finding

based on the certificate of the Radiologist if the person who claims himself to be a Juvenile is ready and willing to place the material in his

possession before the Court by examination of other witnesses or himself to justify the stand taken by him regarding his age. Before arriving at a

conclusion, about the age of the person brought before him, the trial Judge should make a due enquiry as to the age of that person and for that

purpose he should take such evidence as may be necessary and should record a finding regarding his age. The Supreme Court in Gopinath Ghosh

Vs. The State of West Bengal, ., while dealing with similar provisions under the West Bengal Children Act (30 of 1959), has observed that

ordinarily that Court would be reluctant to entertain a contention based on factual averments revised for the first time before it, However the Court

was equally reluctant to ignore, overlook or nullify the beneficial provisions of a very socially progressive statute by taking shield behind the

technicality of the contention being raised for the first time in that Court and that a way had therefore to be found from this situation not conducive

to speedy disposal of cases and yet giving effect to the letter and the spirit of such socially beneficial legislation. The Supreme Court, therefore,

opined that whenever a case was brought before the Magistrate and the accused appeared to be aged 21 years or below before proceeding with

the trial or under-talking an inquiry, an inquiry must be made about the age of the accused on the date of the occurrence, and that this ought to be

more so where special Acts dealing with juvenile delinquent are in force, and that if necessary, the Magistrate may refer the accused to the Medical

Board or the Civil Surgeon, as the case may be, for obtaining credit-worthy evidence about age, and that the Magistrate may as well call upon

accused also to lead evidence about his age and that thereafter, the learned Magistrate may proceed in accordance with law.

Though as stated earlier, the Petitioner had not been diligent in placing before the trial Court the evidence stated to be available to prove that he

was below 16 years of age. I am inclined to give him a chance to produce his evidence before the trial Court to put an end to this controversy

regarding age at the initial stage. The trial Judge is also directed to summon the Radiologist and examine him and furnish an opportunity to the

Petitioner to cross-examine the Radiologist since the certificate of the Radiologist will not be admissible u/s 293, Crl. P.C. without the examination

of the Radiologist.

Further the Transfer Certificate referred to earlier, may also have to be brought on record, in the course of enquiry to be conducted by the trial

Judge. The trial Judge will give opportunity to both parties to produce all evidence which they want to place before the Court and dispose of the

enquiry relating to presumption and determination of age of the Petitioner, in accordance with law, within four weeks from the date of receipt of

copy of this order. Learned Counsel for the Petitioner as well as the prosecution have agreed, that they would place before Court all evidence

expeditiously to facilitate the trial Judge to pass his verdict within the time fixed by this Court. The trial Judge will also furnish a copy of the Transfer

Certificate referred to earlier to the Petitioner, since it is stated by the learned Counsel for the Petitioner, that a copy of the said document had not

been furnished to the Petitioner. This petition is allowed with the above observations.