The determination of the age of the accused falls within the competence of the Magistrate under the provisions of law.

K. C. BHARGAVA, J.

This revision is directed against the order, dated 20-7-19-H passed by the III Additional Sessions Judge, Pratapgarh.

2. The short point which requires decision in the present case is as to whether the ill Additional Sessions Judge was justified in deciding the age of the applicants who are alleged to be juvenile.

3. Heard learned counsel for the applicants as well as learned Additional Government Advocate.

4. Learned counsel for the applicants has argued that the Additional Sessions Judge had no jurisdictions to decide the question as to whether the applicants were juvenile or not. According to the learned counsel the juris diction vests with the concerned Magistrate and he should have decided the age of the applicants.

5. On the other hand learned Additional Government Advocate has argued that the order of the learned Additional Sessions Judge does not suffer from any illegality or irregularity.

6. From a perusal of the order dated 20-7-1991 passed by the III Addititional Session Judge it will be clear that a question was raised |bout the age

of the applicant. According to the learned counsel for applicants both the applicants were minor on the date when the incident took place. He has placed reliance on the case of Gopinath Ghosh v. State of West Bengal, 1984 SCC (Cri) 478. In this case Honble Supreme Court held 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 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. . . . . . . . . . . . . . . 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. "

7. In that case, the case had reached the Court of Session and conviction was recorded against the accused. The High Court a so upheld the conviction and thereafter the matter went to the Honble Supreme Court. The Honble Supreme Court set aside the conviction and remitted the matter to the Magis trate for disposal according to law. The facts of this case apply to the facts of the present case also because the age of the applicants on the date of offence is to be decided by the Magistrate alone which is competent to do so under the provisions of law. Learned III Additional Sessions Judge had no jurisdiction to enter into this controversy. He should have referred this matter to the Magistrate having jurisdiction to ;try the case for determination of the age of the applicants. Therefore, the order passed by the III Additional Sessions judge cannot be sustained. The order, dated 20-7-1*91 is liable to be set aside and the commitment which has been made to the Court of Session is also to be set aside and the matter will have to be remitted to the Magistrate having jurisdiction to try this case to decide die question of age of the applicants on the date of offence.

8. The revision is allowed and the order, dated 20-7-1991 passed by the III Additional Sessions Judge, Pratapgarh in Session Trial No. 139 of 1990, State v. Saimuddin, is set aside. The commitment of these two applicants to the Court of Session is also set aside the matter is remitted to the Court of the Magistrate having jurisdiction for determination of the age of the applicants on the date of occurrence in accordance with law.

Revision allowed.

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