IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1212 of 2008 GUDDU YADAV @ SUBHASH RANJAN KUMAR SON OF LATE SATYA NARAYAN YADAV, RESIDENT OF VILLAGE THALLU BIGHA, P.S.- GHOSHI, DISTRICT- JEHANABAD. Versus THE STATE OF BIHAR For the petitioner : Mr. A.K. Thakur, Advocate. For the State : Mr. Jitendra Kumar Sah, A.P.P. ----------- 3 02.07.2010 Heard both sides. This revision application is directed against the order dated 9.9.2008 passed by learned 1st Addl. Sessions Judge, Jehanabad whereby the petition filed by the petitioner for holding an inquiry in order to ascertain his juvenility has been considered and rejected. Petitioner is facing charge punishable under Section 302 IPC. The occurrence was committed on 30.9.2000. As per the allegation in the F.I.R., the deceased was allegedly surrounded by 20 named accused persons armed with fire arms. It is alleged that he was fired at by the accused persons armed with weapons. Petitioner was apprehended and produced on 19.7.2001 pursuant to the processes issued by the Court. Four months later, an application was filed claiming that he is juvenile within the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) and, as such he be declared accordingly. Such claim was raised on the basis of a mark-sheet of High School wherein his date of birth was found recorded as 15.12.1983. The learned Chief Judicial Magistrate, Jehanabad by a proceeding dated 23.11.2001 2 observed that as per Section 4 of the Act, the Court had no jurisdiction to try and dispose of the matter relating to the claim of juvenility. His application for bail was, therefore, considered on merit and rejected. Aggrieved by the aforesaid order, the petitioner preferred a criminal appeal which was, however, converted into bail application filed in accordance with Section 439 of the Code of Criminal Procedure (hereinafter referred to as the Code). The said application for grant of bail was considered on merit and ultimately rejected by order dated 2.4.2002 (Annexure-4). The matter remained pending thereafter and it appears from the record that five years later, an application under Section 7A of the Act was filed on behalf of the petitioner claiming himself to be a juvenile and prayed for separation of the Sessions Trial. By the impugned order, the said application was heard and disposed of by the learned Trial Court (1st Addl. Sessions Judge, Jehanabad) This is what the learned trial court has observed in the impugned order “Heard the learned counsel for the petitioner on 2.9.2008 and fixing 9.9.2008 for order and though the learned P.P. has not turn up in the case on 25.8.08 and 2.9.08 in spite of repeated call and he is not filing any pairwee in this case. From the perusal of the petition as well as from the perusal of order dated 23.11.01 passed by the then C.J.M., J’bad and 2.4.02 passed by Sessions Judge J’bad it is clear that his application for considering the case under juvenile justice Act has been rejected by C.J.M. J’bad on 23.11.01 and also rejected by the Sessions Judge, Jehanabad vide order 02.4.2002 in appeal and this court can not review the order of Sessions Judge Jehanabad order dated 02.4.2002 as he had clearly stated in order sheet that “but on production of the appellant, he was not found to be a minor “hence this petition is dismissed. Put up on 21.10.08 for 3 evidence.“ Learned counsel for the petitioner, referring to the provisions of the Act, submits that such claim can be raised at any stage of the trial. It is submitted that once such a claim is raised, the same is required to be considered and disposed of in accordance with the provisions contained in the Act. It is the submission of learned counsel for the petitioner that learned trial court has committed serious illegality in refusing to consider his claim on the ground that the same is barred by the Principles of Review. Learned counsel fairly states that the trial court can also embark upon an inquiry in terms of the provisions of the Act to consider the claim of the petitioner. From the records, it appears that his claim of being juvenile in terms of the provisions of the said Act was not gone into in accordance with the Act by the learned Sessions Judge while his bail application was considered and disposed of by order dated 2.4.2002 (Annexure-4). Learned counsel appearing on behalf of the State did not advance any argument. He only supported the impugned order passed by the trial court. On a consideration of the materials available on record, this Court is of the view that the provisions of the Act definitely entitle an accused claiming to be juvenile to raise such a claim at any stage of the trial. Once such a claim is raised, the same needs to be considered on merit. The fact that the petitioner did not raise the issue on previous occasion and prayed for conversion of his appeal to be one of bail application may be a 4 relevant consideration but the Court has to consider and pass an order on his application after making an inquiry as it may deem fit necessary. Such claim cannot be rejected on the ground that it is barred by the principles of res judicata and/or that the trial court is hamstrung as there is already an order passed earlier by the learned Sessions Judge on the bail application of the petitioner. Consequently, the impugned order is set aside. The matter regarding the claim of the petitioner for declaring him as juvenile is remitted back to the learned trial court. Let the learned trial court pass an order on his application in accordance with law after giving both the parties an opportunity of hearing. It appears from the record that the trial is at advance stage. In that view of the matter, this Court directs the petitioner to appear before the Court and raise the said grievance once again before the said court within five weeks from today. With this direction(s) and observations, this application is disposed of. pkj ( Kishore K. Mandal, J. )