Chandmal and ors. Vs. State and ors.

criminal procedure code - section 145--site plan taken into consideration without giving hearing to petitioners--held, order is vitiated.;the aforesaid site-plan ex. 1 was taken in evidence in a manner not warranted by law, without given any hearing to the present petitioner in regard to its admissibility and evidentiary value and without giving a chance of rebuttal.;the petitioners were therefore prejudiced in the matter of the presentation of their case before the learned magistrate. even the risk of such prejudice is sufficient to vitiate the impugned order. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. .....'site-trace' with an 'indication' regarding the possession of the parties. there is nothing on the record to show that the parties or their counsel were present in the court of the magistrate on october 15, 1971. it has been argued by the learned counsel for the petitioners that the aforesaid site-plan ex. 1 was taken in. evidence without proof, and without giving any heating to the petitioners in regard to its admissibilty & evidentiary value. this fact has not been controverted by the learned counsel for the non-petitioners and has, in fact, been admitted by mr. b.r. arora. there is therefore no controversy about the basic fact that the aforesaid site plan ex. 1 was taken in evidence in a manner not warranted by law, without giving any hearing to the present petitioners in regard to its admissibility and evidentiary value and without giving a chance of rebuttal. it also appears from a reading of paragraph 7 of the impugned order that the sita-plan was, all the same, read in evidence by the learned magistrate, and there is justification for the argument that it formed the basis of the impugned order. the petitioners were tlerefore prejudiced in the matter of the presentation of their case before the learned magistrate. even the risk of such a prejudice is sufficient to vitiate the impugned order, as has been held in b. surinder singh kanda v. government of the federation of malaya 1962 (2) wlr 1153.3. the revision petition is therefore allowed, the impugned order of the learned sub-divisional magistrate, malpura, dated october 15, 1971 is set aside, and the learned magistrate is directed to make a fresh order according to the law after hearing the parties. the parties are directed to appear in the court of the learned sub-divisional magistrate on march 19, 1974.