Oral Order:

1. By this petition, the petitioner challenges the order dated 22.5.2009 passed by the Addl. Sessions Judge, Malegaon, declining to determine the age of the petitioner on the ground that the issue of age can be resolved only after evidence is led at the trial. Offences under sections 143, 147, 148, 307, 302, 452 and 506 read with 34 of the Indian Penal Code and sections 4 and 25 of the Arms Act have been registered against the petitioner and others. The petitioner was arrested on 20.5.2008.

2. In the remand report, the petitioner’s age was mentioned as 19 years. The petitioner made an application to the Court stating that his date of birth is 12.01.1992 and that he was a juvenile below the age of 18 years at the time of the commission of the alleged crime. The petitioner, therefore, prayed in his application for being tried under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, hereinafter referred to as the “Act”. For proof of his age, he placed reliance on the birth certificate and extracts of birth register.

3. The application was opposed by the prosecution on the ground that the remand report shows the petitioner’s age to be 19 years and that his bail application also describes him as a major. Apparently, the petitioner stated in his memorandum statement recorded in the presence of panchas that he was a major. The trial Court considered several aspects of the matter such as the date of the trial, commencement of the trial or the date of occurrence of the offence for determining the age. However, while concluding, the trial Court relied on the age mentioned by the petitioner in the bail application and the remand papers and observed that the A.P.P. has disputed the correctness of the birth certificate as unreliable. Accordingly, the trial Court has observed that the age of the petitioner has not been authentically proved and, therefore, proceeded to reject the application.

4. Mr.Shaikh, the learned counsel for the petitioner, submits that the Act requires the Magistrate before whom a person is produced to determine the age of the person. Section 7 of the Act reads as follows:-

“7. 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 under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence), is a juvenile or the child, he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding.

(2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it.”

Section 7A reads as follows:-

“7-A. Procedure to be followed when claim of juvenility is raised before any Court.-- (1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a