L. Mohapatra, J.
1. The order dated 12.11.2002 passed by the learned Sessions Judge, Berhampur in S.C. 54/2002 (Sessions Case No. 328 of 2002) (G.D.C.) rejecting the petition filed by the petitioner for sending the case record to the Juvenile Court, Berhampur for trial on the ground that the petitioner is a juvenile is under challenge in this application under Section 482 Cr.P.C.
2. It was contended before the learned Sessions Judge that the petitioner was aged about 16 years 8 months and 2 days on the alleged date of offence and, therefore, a juvenile and should be tried by the Juvenile Court. The learned Sessions Judge did not accept the age as mentioned in the petition and looking at the physique of the petitioner assessed his age at more than 18 years on the date of occurrence and rejected the petition. The learned counsel appearing for the petitioner submitted that if the learned Sessions Judge had any doubt about the age of the petitioner, he should have directed for an inquiry as contemplated in the statute.
3. From the impugned order, it appears that a claim was made by the petitioner that he was less than 18 years of age on the date of occurrence, but the Court on assessment of his physical appearance assessed the age at more than 18 years. The question that arises for consideration is whether the Court entertaining a doubt about the age of the accused as claimed should assess the age on the physical appearance or direct an inquiry to be conducted for determination of the age. In the case of Arnit Das v. State of Bihar reported in A.I.R. 2000 S.C. 2264 the Apex Court while considering the age under the Juvenile Justice Act, 1986 observed as follows:
'Crucial date for determining the question whether a person is juvenile is the date when he is brought before the competent authority. The procedure prescribed by the provisions of the Act has to be adopted only when the competent authority finds the person brought before it or appearing before it is found to be under 16 years of age if a boy and under 18 years of age if a girl on the date of being so brought or such appearance first before the competent authority. The date of the commission of offence is irrelevant for finding out whether the person is a juvenile within the meaning of Clause (h) of Section 2 of the Act. If that would have been the intendment of the Parliament, nothing had prevented it from saying so specifically. Therefore, a Police Officer or Magistrate who is not empowered to act or cannot act as a competent authority has to merely form an opinion guided by the apparent age of the person and in the event of forming an opinion that he is a juvenile, he has to forward him to the competent authority at the earliest subject to arrangements for keeping the custody and safety of the person having been made for the duration of time elapsing in between. The competent authority shall proceed to hold enquiry as to the age of that person for determining the same by reference to the date of the appearance of the person before it or by reference to the date when person was brought before it under any of the provisions of the Act. It is irrelevant what was the age of the person on the date of commission of the offence. Any other interpretation would not fit in the scheme and phraseology employed by the Parliament in drafting the Act. Moreover, the use of the word 'is' at two places in Sub-section (1) of Section 32 of the Act read in conjunction with 'a' person brought before it also suggests that the competent authority is required to record the finding by reference to an event in praesenti before it, i.e. by reference to the date when the person is brought before it and not by reference to a remote event i.e. the date on which the offence was committed.'
4. The Apex Court again in the case of Rajendra Chandra v. State of Chhattisgarh and Anr. reported in A.I.R. 2002 S.C. 748 observed that when the accused claimed himself to be a juvenile, onus lies upon him to prove that he was a juvenile. Oral and documentary evidence adduced by him not sufficient to discharge the said onus. If on consideration of such materials, two views are possible, the Court should lean in favour of the accused. In the said case accused was found to be less than 16 years of age on the date of offence and the Apex Court held that the accused is a juvenile.
5. In view of what has been observed by the Supreme Court in the case of Arnit Das (supra), I am of the view that the learned Sessions Judge had no scope of assessing the age on the basis of physical appearance of the accused-petitioner. I, therefore, set aside the impugned order and direct to reconsider the petition on merit in the light of the observations of the Supreme Court made in the aforesaid two cases.