IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 Crl.MC.No. 163 of 2011() ----------------------------------- CRRP.NO. 84/2008 of SPECIAL ADDITIONAL SESSIONS COURT (MARADU CASES),KOZHIKODE CC.NO. 507/2007 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM CRIME NO.44/1996 OF MAVOOR POLICE STATION .................... PETITIONER(S): 19TH ACCUSED ------------------------------------------------ C.P.SALIH, S/O.C.P.HAMEED, C.P.M. HOUSE, CHERIYA ALUNKAL PARAMBU, ERANHIPALAM (P.O), CALICUT. BY ADV. SRI.C.P.KUNJHIKANNAN SRI.S.K.MADHU RESPONDENT(S): COMPLAINANT -------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No. 163 of 2011 --------------------------------------- Dated this the 30th day of May, 2011 ORDER Petitioner is accused No.19 in Crime No.44 of 1996 of Mavoor Police Station and accused No.6 in C.C No.507 of 2007 of the Court of learned Judicial First Class Magistrate, Kunnamangalam for offences punishable under Secs.468 and 471 r/w. Sec.34 of the Indian Penal Code and Sec.12(1)(b) of the Passport Act. 2. The case is that a set of passport applications were forwarded to the passport office for verification and it was revealed that documents submitted along with those applications were forged. Petitioner was impleaded as 19th accused in Crime No.44 of 1996 as per Annexure-A1 report dated 05.11.1996 stating that petitioner also is involved in Commission of the said offences. Petitioner had approached this Court on various occasions for reliefs. In Crl.M.C No.897 of 2005 this Court by judgment dated March 18, 2005 directed the Investigating Officer to submit final report as expeditiously as possible. In Crl.M.C No.490 of 2008 again at the instance of the petitioner, this Court while refusing to Crl.M.C.No.163 of 2011(E) -: 2 :- quash proceeding against him, allowed him to plead for discharge before learned Magistrate. Accordingly, petitioner pleaded for discharge before learned Magistrate. But, that request was disallowed and charge was framed. That order was challenged in C.R.P No.84 of 2008 and the learned Special Additional Sessions Judge (Marad cases), Kozhikode by order dated October 12, 2010 dismissed C.R.P No.84 of 2008 (by Annexure-A7). Hence this Crl.M.C. 3. It is contended by the learned counsel that petitioner was a juvenil at the time of the alleged incident, even as seen from the SSLC book of petitioner seized by the police and produced in the case. It is submitted by the learned counsel that in the light of the decision in Lakhan Lal v. State of Bihar ((2011) 1 KLT SN 79 (C.No.107)), benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, the J.J Act) has to be given to the petitioner notwithstanding that the alleged commission of offences was prior to the enactment of the said Act. It is submitted, in the circumstances that learned Magistrate ought to have conducted an enquiry regarding the age of petitioner as on the date of the alleged incident. If the petitioner Crl.M.C.No.163 of 2011(E) -: 3 :- is found to be a juvenile on the date of the incident the case against him could have been dealt with only by the Juvenile Court. 4. In the light of submission made by the learned counsel that the SSLC book of petitioner seized by the police mentioned his date of birth as 04.03.1979, I called for information from learned Judicial First Class Magistrate, Kunnamangalam through the Registrar (Judicial). It is reported that the SSLC book of petitioner produced in the case mentions his date of birth as 04.03.1979. The case was registered on 05.11.1996. The alleged commission of offences must be prior to 05.11.1996. It is pointed out that petitioner completed 18 years only on 04.03.1997. The decisions in Pratap Singh v. State of Jharkhand and Another ((2005) 3 SCC 551) and Jyoti Prakash Rai Alias Jyoti Prakash v. State of Bihar ((2009) 3 SCC (Cri) 796) say that the relevant date to be reckoned to decide whether the accused was a juvenile or not is the date of commission of the offence. The decision in Jabar Singh v. Dinesh and Another ((2010) 3 SCC 757) says that Sec.49 of the Act does not prohibit the Court from determining the age of the accused. It is not clear whether the SSLC certificate seized from the petitioner and Crl.M.C.No.163 of 2011(E) -: 4 :- produced before the learned Magistrate is one among the documents allegedly forged. However, in the light of the date of birth of petitioner given in that document which if taken into account may indicate the petitioner was a juvenile on the date of commission of the offence it is necessary that learned Magistrate conducted an enquiry into the alleged juvenility of petitioner and enter a decision on the matter. The question whether learned Magistrate has jurisdiction to try the petitioner if he were a juvenile as on the date of the commission of offence or, the case against petitioner has to go before the Juvenile Court has to be decided by the learned Magistrate. Learned Public Prosecutor pointed out that in none of the prior proceedings initiated by petitioner in this Court such a contention was urged. Assuming so, the Court cannot refuse to look into the present contention since that may affect jurisdiction of learned Magistrate to try the petitioner. Resultantly, the Criminal Miscellaneous Case is allowed. The order framing charge against petitioner as confirmed by the learned Additional Sessions Judge is quashed and the matter is remitted to the learned Magistrate who shall enquire into the alleged juvenility of Crl.M.C.No.163 of 2011(E) -: 5 :- petitioner as on the date of alleged incident and based on the finding pass appropriate orders as to the forum of trial of petitioner as provided under law and in the light of the decisions on the point. Sd/- THOMAS P JOSEPH JUDGE //TRUE COPY// P.A. TO JUDGE krj