( 1 ) APPELLANT Khalilullah is alleged to have committed the murder of one Rashidullah on 18-9-1980. After due investigation, the police filed the challan before the Magistrate for an action under S. 209, Cri. PC for commitment of the case to court of Session the offence being triable exclusively by Court of Session. The learned Magistrate by order dt. 28-1-1981 committed the case to the Court of Session and forwarded the papers accordingly to that Court. The Sessions Judge, however, took up the matter only on 17-2-1981 and proceeded to try the appellant. Meanwhile, the Madhya Pradesh Bal Adhiniyam, 1970 (Act No. 15 of 1970) was made applicable to Raisen district with effect from 15-2-1981, vide notification No. D. 739-6835-XXVI-81, dt. 5th Feb. 1981, and in exercise of powers under S. 4 of that Act, a Juvenile Court was constituted for Raisen district. After trial, the learned Sessions Judge found the appellant guilty and by judgment dt. 24-6-1981 convicted him under S. 302, Penal Code, and awarded a sentence of rigorous imprisonment for life.

( 2 ) WITHOUT addressing on the merits of the case, Shri A. Usmani, learned counsel for the appellant, made an application before this Court and also filed certain documents contending that the appellant was born on 4-1-1967 and, therefore, on the date of the commission of the crime, was less than sixteen years of age and was thus a "child" within the meaning of S. 2 (c) of the Bal Adhiniyam, reading as follows :-" (c) "child" means a boy or a girl who has not attained the age of sixteen years;" it was, therefore, submitted that since the Bal Adhiniyam was made applicable to Raisen district, not the Sessions Court but the Juvenile Court had jurisdiction and, therefore, the entire trial is vitiated.

( 3 ) THE contention that the appellant was below sixteen years of age and, therefore, a "child" within the meaning of the Bal Adhiniyam was not raised before the Lower Court. In case, however, the appellant was in fact a "child" on the date of commission of the crime, he should not be deprived of the beneficial provisions of the Adhiniyam merely because the question of the appellant's age was not agitated before the lower Court. Justice should not be allowed to be defeated at the hands of mere technicalities. In fact, as pointed out by the Supreme Court, in Gopinath Ghosh v. State of W. B. , AIR 1984 SC 237 whenever the matter is brought before a Magistrate and the accused appears to be of tender age, an inquiry before proceeding with the trial must be made about the age of the accused on the date of the occurrence. This should be more so when the special Acts dealing with juvenile delinquent are in force. The accused must be given an opportunity to lead evidence about his age and an expert medical evidence of age of the accused be obtained. The Supreme Court even appreciated the propriety of issuing instructions to the trial Courts in that behalf. Needless to say that in view of the observations made by the Supreme Court in Gopinath's case (supra), and in view of the fact that the social progressive statute, namely, the Bal Adhiniyam, being in force in the region where the occurrence in question took place, we overrule the objection that as the question of appellant's age was not agitated before the lower Court, the same be not permitted to be raised in this Court for the first time.

( 4 ) THE appellant has filed on record documents to prove his date of birth. The primary school certificate, the marks-sheet and his progress report all show his date of birth 4-1-1967. While releasing the appellant on bail by order dt. 16-10-1980, the learned Sessions Judge also noticed that the appellant was a minor. These documents clearly show that the appellant was below sixteen years of age on the date when the occurrence took place. This position was not seriously disputed by the counsel for the respondent/state. We, accordingly, hold that the appellant was born on 4-1-1967 and was less