Ganga Paharia vs The State of Bihar

S.K. Chattopadhyaya, J.—Heard Mr. P.K. Sinha, learned Counsel for the Petitioner and Mr. Yadav, learned Government Advocate, assisted by the learned A.P.P. on behalf of the State.

This application is directed against the order dated 16.12.98 passed by the trial court in Sessions Trial No. 313 of 1995, by reason of which the court has refused to accept the Petitioner as juvenile and thus did not bifurcate his case from the other accused.

It appears that for an offence, said to have taken place on 26.6.95 at about 1 A.M., a first information report was lodged and the police registered a case under Sections 448, 325, 323, 302 read with Section 34 of the Indian Penal Code, Cognizance was taken and after committal a petition was filed by the Petitioner on 19.2.97 requesting the court to bifurcate the trial on the ground that at the time of the alleged occurrence he was a minor juvenile within the meaning of Juvenile Justice Act. On 19.5.97 the trial court directed the Civil Surgeon, Sahibganj to constitute a Medical Board for determining the age of the Petitioner. According to the Medical Board on 17.6.97 the age of the Petitioner was approximately 17 years but according to the Board it was to be confirmed through radiological, examination. The Petitioner was sent to Bhagalpur Medical College and Hospital for such examination and the Jawahar Lal Nehru Medical College and Hospital, Bhagalpur, after performing X-ray gave a report on 16.11.98 that the Petitioner''s age was 18 years. An argument was advanced before the trial court as on 16.11.96 the Petitioner was aged about 18 years, on the date of occurrence i.e. 26.6.95 he was below the age of 16 years and, as such, he was entitled to get his trial bifurcated and was entitled to be tried by the Juvenile court. The learned trial court rejected this contention on the ground that the whole trial was concluded and the matter was pending only for argument of the defence and at this stage the Petitioner has tried to linger the matter. Holding this the trial court has rejected his prayer.

Learned Counsel for the Petitioner has placed much reliance in the case of Bhola Bhagat Vs. State of Bihar, and submits that where the plea that the accused was a child on the date of commission of offence, then the High Court is duty bound to make an enquiry in this regard and this plea can be taken even at the appellate stage. According to the learned Counsel when the Medical Board as well as radiological report indicates that on 17.6.97 and 16.11.98 he was about 18 years of age, the court below should have held that on the date of occurrence the Petitioner was a minor.

Learned Government Advocate, on the other hand, has relied on the three Judges'' decision of the Apex Court in the case of Abdul Mannan and others Vs. State of West Bengal, and submits that the Petitioner admittedly did not challenge the order taking cognizance or even framing of charge and only on 19.2.97 made a prayer before the court to bifurcate his case. According to him on 16.12.98 when the impugned order was passed admittedly the Petitioner had attained the majority and the trial was near completion and only exchange of argument was required to be advanced on behalf of the defence. Under these circumstances, learned Counsel submits that this revision application cannot be allowed by setting aside the order of trial court.

In the case of Bhola Bhagat (supra) their Lordships, inter alia, observed that (1) when a plea that the accused was a child on the date of commission of offence is taken, the courts, including the High Court is duty bound to make an enquiry, (ii) even if the plea for the first time is taken before the High Court at the appellate stage, the High Court may direct the subordinate court that an enquiry be made. Their Lordships were of the view that in view of the decisions in the case of Bhoop Ram Vs. State of U.P., . 1 decision in the case of State of Haryana v. Balwant Singh 1993 Supp (1) S.C.C. 409 is not a good law. The Full Bench decision of this Court in the case of Krishna Bhagwan Vs. State of Bihar, was approved. In the said case the Supreme Court after considering various aspect of the matters while sustaining conviction quashed the sentence and released the Appellants.

In the case of Abdul Mannan and Ors. (supra) the Apex Court after noticing the fact that even after coming into force of the Central Act no court was constituted in the State of West Bengal and even though when the Additional Sessions Judge was appointed by the High Court to exercise jurisdiction to try the offences of the juvenile offender the Appellants, who were juvenile by passage of time they no longer remained to be juvenile offender. The observations of the Lordship in paragraph-5 may be quoted.

The object of the Juvenile Justice Act is to reform and rehabilitate the juvenile offenders as useful citizens in the society. In the facts and circumstances of the case, the benefit of the Central Act was denied to them due to their own act of keeping the trial pending by protracting litigation kept the case pending trial and in the meanwhile the Appellants had crossed the age of juvenile offenders and become adults. We do not think it is a proper case for our interference as no useful purpose under Central Act would serve.

In this back ground in the instant case also the Petitioner immediately after the order taking cognizance did not pray before the court for separation of his trial on the ground that he was a juvenile. As soon as he filed a petition in the year 1997 the trial court ordered for constitution of a Medical Board for examination of the age. By that time the Medical Board gave his report, which was confirmed by the radiological examination, the Petitioner became major. Moreover from the impugned order it appears that the trial is at the stage of defence argument meaning thereby that the prosecution witnesses have been examined as well as the Petitioner and other accused had also been examined u/s 313 Code of Crimianl Procedure.

In these circumstances, in my view, the impugned order cannot be interfered with. This revision application is, accordingly, dismissed.