Criminal Miscellaneous No.1743 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- RANJEET KUMAR SON OF MAHENDRA PASWAN, RESIDENT OF VILLAGE- ITAURA, P.S. MANPUR, DISTT. NALANDA. ... ... PETITIONER. Versus THE STATE OF BIHAR ... ... OPPOSITE PARTY ---- For the Petitioner : M/S Vidya Sagar,Adv. Sumir Kumar Ranjan,Adv. For the State : Mr. Sunil Kumar Pandey,A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of order dated 2.11.1998 passed in Cr. Revision No.240 of 1998 by the Sessions Judge, Nalanda. The petitioner has also prayed for quashing of order dated 20.7.1998 passed by the Chief Judicial Magistrate, Nalanda in G.R. Case No.1731 of 1992/Tr. No.164 of 1998. By order dated 20.7.1998, the learned Magistrate had directed for getting the age of petitioner assessed by the Civil Surgeon, Nalanda. 2. Aggrieved with the order passed by learned C.J.M. whereby, direction was issued to get the age of petitioner assessed by the Civil - 2 - Surgeon, Nalanda, the petitioner filed a revision petition vide Cr. Revision No.240 of 1998 and the learned Sessions Judge by its order dated 2.11.1998 has rejected the revision petition. 3. Mr. Vidya Sagar, learned counsel appearing on behalf of the petitioner, while challenging both the orders, submits that firstly revisional court had not exercised its jurisdiction mainly on the ground that an interlocutory order was challenged before the revisional court. He further submits that order dated 20.7.1998 is not permissible in the eye of law. Learned counsel submits that by passing order dated 20.7.1998, the learned Magistrate has virtually recalled its earlier order whereby charges were framed against the petitioner. He submits that initially the case of three accused persons were considered at the time of commitment by the Judicial Magistrate and on 10.10.1993, the Judicial Magistrate, while committing the case of other two accused persons, sent the case of this petitioner to the Chief Judicial Magistrate on the ground of juvenility of this petitioner. He further, by way of referring to two orders dated 13.6.1997 and 23.7.1997, submits that the learned - 3 - Magistrate had fixed the case for framing of the charges and accused was physically present before the court and as such the learned Magistrate had got no occasion to pass an order directing the Civil Surgeon, Nalanda to examine the petitioner regarding his age. Learned counsel for the petitioner has submitted that the learned Magistrate has committed a grave error in recall of earlier order. He submits that the impugned order amounts to review of order of the framing of the charges. Accordingly, he has prayed for quashing of the order dated 20.7.1998 as well as order passed by the revisional court. 4. Shri Sunil Kumar Pandey, learned counsel appearing on behalf of the State has vehemently opposed the prayer of the petitioner. He, by way of referring to the order of revisional court, submits that for several months, the petitioner was absent and no order could be passed for assessing the age of the petitioner in view of his absence. He further submits that it is complete domain of a court to get age of an accused examined at any stage of the trial. He submits that by way of passing the impugned order, the learned Magistrate has - 4 - committed no error. He further submits that the present petition is not maintainable due to the reason that it amounts to entertaining second revision petition. He submits that once revisional court had already rejected the prayer of the petitioner, the petitioner was not entitled to again challenge the same order before this Court in the garb of a petition filed under Section 482 of the Code of Criminal Procedure. 5. I have also examined the materials available on record and both the impugned orders. Prima facie, I am of the view that by way of directing the Civil Surgeon, Nalanda for ascertaining the age of the petitioner, the learned Magistrate has committed no error. So far as the submission of the petitioner that by order dated 20.7.1998, the learned Magistrate had virtually reviewed the order of framing of the charge is concerned, I am of the view that this submission is required to be noticed only for its rejection. In the present case, on the ground of juvenility, the case was referred to the court. Learned counsel for the petitioner has submitted that by order dated 13.6.1997, the learned Magistrate had fixed the case for explanation of - 5 - accusation as well as for hearing on the point of ascertainment of the age of this petitioner. This order makes it clear that the learned Magistrate was right from the very beginning was eager to get the age of the petitioner ascertained and finally by order dated 20.7.1998, which has been impugned before this petition, the learned Magistrate has directed the Civil Surgeon, Nalanda to assess the age of the petitioner. 6. I am of the view that in any event, this order cannot be considered as an order of review or recall of order of explaining accusation. During the trial, the learned Magistrate was having full authority to get the petitioner’s age assessed and as such he has committed no error by passing the said order. I am also of the view that once the petitioner had challenged the order of learned Magistrate by filing the revision petition in view of Section 397(3) of the Cr.P.C., the petitioner was not entitled to maintain the present petition in the garb of a petition filed under Section 482 of the Cr.P.C. 7. In view of the facts and circumstances mentioned hereinabove, I do not - 6 - PATNA HIGH COURT Dated 8.4.2010 N.A.F.R./N.H. find any merit in this petition and petition stands rejected. 8. By order dated 29.7.1999, while admitting the present petition, this Court had directed that during the pendency of this application, further proceeding in the court below shall remain stayed. 9. In view of rejection of this petition, the interim order of stay stands automatically vacated. 10. Keeping in view the fact that in the present case, alleged occurrence was committed some time in the year 1992, it is desirable to direct the concerned court to proceed with the case expeditiously. 11. With above observation and direction, petition stands rejected. ( Rakesh Kumar,J.)