IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 Crl.MC.No. 1639 of 2011() ---------------------------------------- (F.I.R. NO.128/2011 OF AMBALATHARA POLICE STATION) ....... PETITIONER(S): ACCUSED: ----------------------------------------- ASOKAN.M,AGED 20 YEARS, S/O.BALAMANI.M, R/AT THOTTILAYI HOUSE, PO. PERALAM, KANHNIRAPOYIL,KANNUR DISTRICT. BY ADV. SRI.K.P.HARISH RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------------- 1. STATE-REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. STATION HOUSE OFFICER(CRIME NO.128 OF 2011 OF AMBALATHARA POLICE STATION)KASARAGOD DISTRICT,PIN 671 001. R1 & R2 BY PUBLIC PROSECUTOR SRI.JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.1639/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A1: COPY OF THE ORAL STATEMENT RECORDED BY THE DY. S.P., KASARAGOD ON 19/03/2011. ANNEX.AII: COPY OF THE F.I.R. NO.128 OF 2011 OF AMBALATHARA POLICE STATION DTD. 19/03/2011. ANNEX.AIII: COPY OF THE SCHOOL ADMISSION REGISTER DTD. 30/03/2011 ISSUED BY THE HEADMASTER, GOVERNMENT UPPER PRIMARY SCHOOL, KANHIRAPOYIL. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1639 of 2011 -------------------------------------- Dated this the 14th day of June, 2011. ORDER Petitioner is the sole accused in Crime No.128 of 2011 of Ambalathara Police Station for offences punishable under Section 376 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Case is that for about three months from 11.01.2008 petitioner, on a false promise to marry the defacto complainant who belongs to the scheduled caste subjected her to sexual intercourse and thereby committed offences as above stated. It is contended that petitioner was aged 17 years on 11.01.2008 and hence he was a juvenile on the date of alleged commission of offences. Learned counsel for petitioner submitted that Annexure-AIII, photocopy of extract from the admission register of petitioner would reveal his date of birth as 22.05.1990 which indicates that he was a juvenile on the date of alleged incident. Learned counsel has brought to my attention to Section 6 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, “the Act”) and the decision in Selvi v. State of Kerala (2008 (4) KLT 329) to contend that this Court has the same power as the Magistrate could exercise when the proceeding is in appeal or otherwise before this Court. Learned Public prosecutor has submitted that the Investigating Crl.MC No.1639/2011 2 Officer has already applied for relevant records regarding the age of petitioner and the same would be produced before learned Judicial First Class Magistrate-I, Hosdurg on receipt. 2. Under Section 7(1) of the Act when any Magistrate not empowered to exercise powers of a Board under the Act is of the opinion that a person brought before him under any of the provisions of the Act (other than for giving evidence) is a juvenile or child, he shall without any delay record such opinion and forward the juvenile or child and the record of proceeding to the competent authority having jurisdiction over the proceeding. Sub-section (2) says that the competent authority to which the proceeding is forwarded under Sub-section (1) shall hold inquiry as if the juvenile or the child had originally been brought before it. 3. Primarily it is the function of the learned Magistrate before whom petitioner appeared or was brought to ascertain the age of petitioner as on the date of alleged incident and say whether or not on that day he was juvenile. True, Section 6(2) of the Act confers powers on this Court as well. But, in view of Section 7 of the Act that power in my view has to be initially exercised by the learned Magistrate. Learned Magistrate has to conduct an enquiry as provided under Section 7A of the Act with reference to relevant records that petitioner and the Investigating Officer may produce and take appropriate decision in the matter. Crl.MC No.1639/2011 3 Resultantly this Criminal Miscellaneous Case is disposed of directing learned Judicial First Class Magistrate-I, Hosdurg to enquire into the alleged juvenility of petitioner (as provided under Section 7A of the Act), enter appropriate finding and take appropriate decision based on that finding. Learned Magistrate shall expedite the proceeding in that regard. THOMAS P.JOSEPH, Judge. cks