Ishaq and Others vs State of Rajasthan

N.L. Tibrewal, J.—The petitioners have moved this IVth application for grant of bail u/s 439 Cr.PC. The first application was rejected on 12.8.94 on merits. The second application was again dismissed on merits on 4.10.94 and the third one was rejected on 17.2.95.

During the course of arguments it was seriously contended by the learned Counsel that the petitioner Jallu alias Jalaldeed was 16 years of age at the time of the incident, while petitioner Rustam was 12 years of age, as such, their trial is vitiated. According to the learned Counsel both these petitioners being juvenile offenders be given the benefit of bail. This argument was made by the learned Counsel first time, as such a report was obtained from the concerned trial court on this aspect of the matter. The learned trial court has sent the report, it was stated in the report that in the charge-sheet the year of birth of accused Rustam was mentioned as 1982, but in his arrest memo dated, 18.6.94 his age was shown as 22 years. In the charge framed by the Court on 3.10.94 the age of the petitioner Rustam was recorded as 22 years and this was disclosed by the accused himself. Similarly, for accused Jallu it was stated that in the charge-sheet his year of birth was mentioned as 1979, but in the arrest memo dated, 9.6.94 his age was recorded as 25 years. The charges were framed against him by the trial court in which his age was recorded as 24 years which was stated by the accused- petitioner himself. In view of the aforesaid facts that argument does not survive.

So far as merits of the case is concerned, the bail application has been rejected thrice. The trial has already made substantial progress, in as much as, by January 9, 1995, statements of 11 prosecution witnesses were already recorded.

Consequently, I do not find any ground to release the petitioners on bail in this IVth bail application. The application is therefore, rejected. However, in the facts and circumstances, the trial Court is directed to expedite the trial.

Before parting with, I would like to draw attention of the trial Court towards the judgment rendered in S.B. Criminal Miscellaneous Petition No. 966/93, Balbir Singh v. State of Rajasthan, decided on January 28, 1994 in which I have observed as under:

It is often seen that a plea is not taken by an accused at the initial stage of his being a juvenile. Such, objection is raised sometimes in appeal or revision. Therefore, I am of the opinion that whenever an accused is brought before the Court who appears to be a juvenile or of an age of 21 years or below, an inquiry should be undertaken about his age before proceeding with the trial in the case. In many cases, it is found that magistrates or even Court of Sessions are unmindful that determination of age of an accused is very much crucial when he appears to be a juvenile. Whether a plea is taken or not at the initial stage, the Courts should not forget their duty which has been cast upon them to deal with delinquent juveniles differently from persons who are not juvenile. In Gopinath Ghosh v. The State of West Bengal 1984 Cri.LR (SC) 1, the Supreme Court rightly observed:

We are of the opinion that whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below, before proceeding with the trial or undertaking an inquiry, an inquiry must be made about the age of the accused on the date of the occurrence. This ought to be more so where special acts dealing with juvenile delinquent are in force. 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. The Magistrate may as well call upon accused also to lead evidence about his age. Thereafter, the learned Magistrate may proceed in accordance with law. This procedure, if properly followed, would avoid a journey upto the Apex Court and the return journey to the grass-root court. If necessary and found expedient, the High Court may on its administrative side issue necessary instructions to cope with the "situation herein indicated.

In the instant case, if the trial court finds that the exact age of the petitioners is disputed and it requires an inquiry, then it should hold an inquiry for the petitioners, Jallu alias Jalaldeed and Rustam before further proceeding with trial of the case, so that the plea may not be taken subsequently that they were juvenile offenders.

The petition is disposed of as indicated above.

A copy of this order be sent to the trial court immediately.