IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 Crl.MC.No. 2816 of 2009(F) ----------------------------------- CP.50/2009 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG (CRIME NO.59/2009 OF BAKEL POLICE STATION) ............................................... PETITIONER(S): ACCUSED ------------------------------------- RATHEESH NOW AGED 18 YEARS, S/O.RAJAN, RESIDING AT ARAVATHU PANAYAL PO, HOSDURG TALUK, KASARGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S)/STATE & COMPLAINANT: ------------------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. THE STATION HOUSE OFFICER BAKEL POLICE STATON, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2816 OF 2009 ----------------------------------------- Dated 28th August 2009 O R D E R Petitioner is the fifth accused in C.P.50/2009 on the file of Judicial First Class Magistrate-II, Hosdurg. This petition is filed under Section 482 of Code of Criminal Procedure to declare that non bailable warrant was issued against him to secure his presence in C.P.50/2009 is without jurisdiction and therefore unenforceable. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Arguments of the learned counsel is that as seen from Annexure-2 SSLC book, petitioner was born on 11/3/1991 and hence on the date of commission of the offence on 10/2/2009, he is a juvenile as defined under the Juvenile Justice (Care and Protection of Children) Act and therefore, the non bailable warrant issued against him is to be declared without jurisdiction. 4. Learned Public Prosecutor submitted that it is for the petitioner to establish before the CRMC 2816/09 2 learned Magistrate that he is a juvenile and so long as it is not shown to the satisfaction of the Magistrate that he is a juvenile, the non bailable warrant issued cannot be said to be without jurisdiction. 5. Section 7 A of the Act provides the procedure to be followed when an accused claim juvenility before the court. Under Sub Section 1, whenever a claim of juvenility is raised before any court or if the court is of the opinion that accused person was a juvenile on the date of commission of the offence, court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is juvenile or child or not, stating his age as nearly as may be. Therefore, it is upto the petitioner to approach the learned Magistrate and claim juvenility and establish that he was a juvenile on the date of commission of the offence. With that liberty petition is disposed. If claim of the juvenility is raised, learned Magistrate not to remand the petitioner, before deciding that question. M.SASIDHARAN NAMBIAR, JUDGE. uj. CRMC 2816/09 3