1. This application is directed against the order dt. 3-9-1981 passed in Session Trial No.36 of 1981 by the learned Additional Sessions Judge II, Patna, who has rejected the prayer of the petitioner for separating the trial in accordance with the Bihar Children Se-cond Ordinance, 1981 (hereinafter re-ferred to as the Ordinance).

2. The petitioner was named as one of the accused along with his father Lallan Prasad and elder brother Kumar Nityanand for the offence under Sec.302/34 of the I.P.C. (hereinafter referred to as the penal Code) on the basis of a first information report lodged with Gardanibagh Police Station giving rise to Gardanibagh P.S. Case No.1(2)79.

3. Informant Bijoy Kumar Dutta had reported that on 1-2-1979 at about 4 P.M. Kumar Nityanand, who lived in flat-No.487 situate at Lal Bahadur Shastri Nagar, in the neighbourhood of the informant, had made some gestures towards the informants sister Kanti Devi, who was on the Balcony of her flat. She had made a protest to her mother and also father, when he had returned from his office. Consequently, the parents of Kanti Devi had gone to the house of the petitioner at 6.30 P.M. to lodge a protest. Lallan Prasad had not by then returned from his office. An altercation took place between the mother of the informant and the mother of the petitioner. At about 11 P.M. in the night Lallan Prasad, the petitioner and his brother Kumar Nityanand went to the house of the informant and had asked to open the door in an agitated mood. When the door had been opened, Rameshwar Dutta, who happened to be the father of the informant was assault-ed and abused. Thereafter, he was thrown from the second floor to the ground. He was taken to the hospital, but he was declared dead.

4. The notice after investigation had submitted charge-sheet against the peti-tioner, his father and his elder brother on 3-4-1979 under Secs.143, 448, and 302/34 of the Penal Code and a few others.

5. The learned Chief Judicial Magis-trate, Patna took cognizance on 18-5-1979 and proceeded with the committal pro-ceeding. On 28-1-1981, the petitioner and other accused person were committed to the Court of Session to stand trial on charges under Secs.143, 448 and 302/34 of the Penal Code.

6. On receipt of the commitment order and the records, Session Trial No.36 of 1981 was registered and the case came to the file of the learned Additional Sessions Judge II, Patna for disposal and trial. The learned Addi-tional Session Judge issued notice to the accused persons for their appearance on 2-7-1981. It was further extended to 10-7-1981. The accused persona appeared on 10-7-1981 and the case was adjourn-ed to 29-7-1981.

7. An application was filed for separating the trial of this petitioner on the pretext that he happened to be a "child" and that being so, in accordance with the Ordinance, his trial can only be held by the "Childrens Court."

8. The matter was contested by the informant and also the State and if ap-pears that the petitioner had been re-ferred to the Civil Surgeon for the esti-mation of his age.

9. However, the learned Additional Sessions Judge has rejected the prayer on consideration of Sec.26 of the Ordin-ance.

10. It has been contended on behalf of the petitioner that in any view of the matter, any joint trial of the petitioner by any other court excepting child-rens court is not at all legal and valid.

11. The petitioners case further is that he is a child as defined under the Ordinance and his date of birth happen-ed to the 9th July, 1966. In support of this date of birth, a certificate of the Principal of the Government High School, Shastrinagar, dt. 27-7-1981, a copy of which has been annexed and marked as Annexure 1 to this application, admit card and the School leaving certi-ficate of Rajkiya Uchha Madhymik Vidyalaya, Lal Bahadur Shastri Nagar, copies whereof have been annexed and marked as Annexures 1/A and 1/2 to this application, had been filed before the learned Addl. Session Judge. Whil