The main legal point established is that the court of Sessions, including the Special Judge EC Act, has the power to decide the juvenility of an accused under the Juvenile Justice Act, 1986, and subsequent Acts.

JUDGMENT :

Dinesh Kumar Singh, J.

1. Heard Sri Ajay Kumar, learned counsel for the revisionist and Sri Arun Kumar Singh, learned A.G.A. for the State are present.

2. This criminal revision has been preferred against judgment and order dated 23/4/1998 passed by the Special Judge EC Act, Mainpuri whereby application number 86 - A of the revisionist Sanjeev Kumar involved in crime no. 399 of 89 for the offences under sections 147, 148, 149, 307 and 302 IPC and also in crime no. 400 of 1989 for the offence under section 25 of Arms Act relating to PS Kotwali, Mainpuri seeking transmission of the case to juvenile court, has been rejected.

3. The grounds set up in the revision are that at the time of the alleged occurrence i.e. on 15/07/1989 the revisionist was minor, therefore the Special Judge EC Act was not competent to decide this fact as to whether the revisionist was a juvenile or not under sections 7 (2) of the Juvenile Justice Act. The learned Special Judge EC Act was not competent to hold an enquiry into the question as to whether the accused was juvenile or not on the date of occurrence. The revisionist had raised preliminary objection through his counsel before the Special Judge but the same was rejected. Even if it be taken that the Special Judge had power to decide the juvinility, the revisionist was not given any opportunity to produce the evidence in support of his claim, hence the impugned order was arbitrary illegal and against the provisions of law. The revisionist was ready to produce all evidence in support of his claim that he was a juvenile at the time of alleged occurrence. It is further stated in the grounds that even the prosecution had failed to adduce any relevant documents about the date of birth of the revisionist, hence the impugned judgment and order dated 23/04/1998 deserved to be set aside.

4. It would be pertinent to see as to whether the revisionist had extended evidence before the trial court in support of his claim or not and what was the basis of reaching the said conclusion that the revisionist was not juvenile on the date of occurrence.

5. It is recorded in the impugned order that on the application 86 - A, of the defence, it was ordered that the applicant would appear in person and produce evidence on 15/04/1998, but no evidence was led from his side, although the revisionist accused appeared before the trial court in person on 22/04/1998. It is further recorded in the impugned judgment that the prosecution had countered the claim of the defence by filing a certificate of Principal of Christian Inter-College, Mainpuri which showed the date of birth of accused to be 02/07/1973, while the incident had taken place on 15/07/1989 which meant that the revisionist was of 16 years of age at the time of incident.

6. It is mentioned in the impugned judgment that from the side of defence reliance was placed upon Makrand vs State of U.P.,1996 32 AllCriC 353 in which Allahabad High Court held that if the accused claimed himself to be a juvenile on the date of incident then he should be tried by a Juvenile Court, the Additional Sessions Judge would not be empowered under section 7 (2) of Juvenile Justice Act, 1986 to hold enquiry into the question as to whether the accused was a juvenile on the date of incident. The reliance was also placed by the defence on Kamalesh Kumar vs State of U.P.,1994 AICC 650 wherein it was held that Section 8 of the Juvenile Justice Act confers powers only on the Special Magistrate and not on the Sessions Judge, therefore in the present case the Special Judge did not have power to decide the juvenility of the revisionist.

7. It is further mentioned in the impugned judgment that the Learned ADGC (Criminal) repelled the said argument of the defence and submitted that accused was not a juvenile at the time of incident as he was above 16 years of age. It was further submitted that the said court had jurisdiction to determine the said question and placed reliance upon the law laid down in Om