The main legal point established in the judgment is that the primary jurisdiction for determining the age of a child in conflict with the law lies with the Juvenile Justice Board or Committee, and the Sessions Court exercises appellate jurisdiction, not original jurisdiction.

JUDGMENT :

1. Present application under Section 482 Cr.P.C. has been filed impugning the order dated 05.01.2019 passed by learned II Additional Sessions Judge/Special Judge S.C./S.T. Act, Sultanpur in Misc. Criminal Case No.362 of 2018 arising out of Case Crime No.09 of 2018 under Sections 147, 148, 149/34, 302 IPC, 3(2)(v) S.C./S.T. Act, Police Station Munshiganj, District Amethi.

2. One of the accused facing trial for the aforesaid offence is Rahul Kashyap s/o Ram Sajivan. An application came to be filed by the mother of accused-Rahul Kashyap for declaring the said accused to be Juvenile. The incident took place on 15.01.2018, and it was said that as per the High School Certificate, date of birth of accused-Rahul Kashyap is 05.09.2020 and thus, he was 17 years 4 months and 10 days old on the date of incident. First application was rejected on 16.07.2018 on technical ground, however, liberty was granted that fresh application can be filed to determine juvenility of the accused-Rahul Kashyap.

3. In pursuance to the liberty granted by the learned Additional Sessions Court, fresh application came to be filed by the mother of the accused-Rahul Kashyap annexing copy of the High School Mark-sheet of said accused of the year 2016.

4. Learned trial Court after considering the application and looking at the original certificate found that as per High School Certificate date of birth of Rahul Kashyap is 05.09.2000 whereas the incident took place on 15.01.2018 and thus, he was less than 18 years of age on the date of incident and thus, declared juvenile.

5. Despite service of notice, no one has put in appearance on behalf of opposite party No.2, mother of accused-Rahul Kashyap on whose application accused-Rahul Kashyap was declared juvenile.

6. This Court vide order dated 01.06.2022 after taking notice of the fact that despite service of notice, no one has put in appearance on behalf of the petitioner, directed the matter to be listed on 01.07.2022 peremptorily.

7. Today, no one has put in appearance on behalf of opposite party No.2 to oppose the petition.

8. Learned counsel for the petitioner has made two submissions. Firstly, he has submitted that the jurisdiction to determine the juvenility of an accused primarily lies with the Juvenile Justice Board or the Committee under Section 14 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the Act'), which provides that where a child alleged to be in conflict with law is produced before Board, the Board shall hold an enquiry in accordance with the provisions of the Act and may pass such orders in relation to such child as it deems fit under Sections 17 and 18 of the Act. Against the order passed under Section 14 of the Act, appeal is provided under Section 101 of the Act before District Magistrate and Court of Sessions. He, therefore, submits that there is no original jurisdiction vested in the Sessions Court to hold an enquiry in respect of a child in conflict with law. Sessions Court can exercise only appellate power and not original power.

9. Second submission he has advanced is that the order passed by the learned Sessions Court is bad in law inasmuch as trial of the accused-Rahul Kashyap has been separated and has been referred to Juvenile Justice Board for trying him separately. He has submitted that accused-Rahul Kashyap is involved in heinous offence of murder, and he is more than 17 years of age even if High School Certificate of the accused-Rahul Kashyap is considered to be true and correct document. He has submitted that under Sub-Section 3 of Section 18 of the Act where the Board after preliminary assessment under Section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of trail of the case to the Children's Court having jurisdiction to try such offences.

10. It is further submitted that even as per High School Certificate, accused-Rahul Kashyap is now major and he cannot be tried by Children's C