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Criminal Transfer Application No. 92 of 1973, decided on 8th March 1974.

‑‑ Age‑Examination for purpose of age by means of X‑Ray teat and ordinary clinical means‑Estimate of age by X‑Ray, held, more accurate.

‑-----S. 526 and Bombay Children Act (XIII of 1924), S. 5‑Powers conferred by Act on juvenile Courts‑Can be exercised by Magistrates I Class especially empowered and by High Courts and Courts of Session‑offenders involved in committal cases‑To be tried Inclusively by Sessions Court‑Accused not being tried but appearing in committal proceedings as accused and either to be discharged or committed to Court of Session‑Held : No purpose served in ordering transfer of case to Court of Session empowered under Act.

Sikandar Ali Abdullah for Applicant.

Aftab Ahmed Alvi for the State.

Date of hearing : 8th February 1974.

7 he applicant in this transfer application claims to be a child within the meaning of the Bombay Children Act 1924, as applicable to Karachi, and the application for transfer is based solely on the ground that he ought to be prosecuted not before the 21st A. C. M., Karachi where his case is now pending but before a Juvenile Court constituted under that. Act.

2. The applicant was arrested by the police on the 7th of April 1972, and was originally produced before the 11th Additional City Magistrate who remanded him to police custody and later directed that he be kept in judicial custody and also that he be examined by a doctor as to his age. As a result of this order the Medical Officer of the Borstal Institute‑cum -Juvenile Jail Landhi examined the applicant and came to the conclusion that he was about 14 years of age. Admittedly this medical examination consisted only of a physical and clinical examination and there was no exa mination by means of X‑Ray. It might also be noted that under the Bombay Children Act the material age is 14 years and it seems that, as a consequence of this examination, the case was transferred by an order of the District Magistrate Karachi to the 20th Additional City Magistrate Karachi, the late Mrs. Surya Ahmad Pai, who was empowered under the Act to act as a Juvenile Court. Subsequently the first informant in this case made an application claiming somewhat vehemently that the applicant was well over the age of 14 years and as a result that learned Magistrate directed that the applicant be produced before the police surgeon for a detailed examination and report on his age. In consequence Dr. Muhammad, Umar Khan, the police surgeon, Karachi examined him again and this time also hats him subjected to an X‑Ray examination and as a result gave an opinion that the applicant was about 17 years of age. By an administrative order of the District Magistrate this case alongwith some others was then re transferred to the Court of the 11th A. C. M. who was the Magistrate having territorial jurisdiction in the case. In the course of this application the applicant no doubt claims that "either cases of juveniles" were retained by the 20th A. C. M. but quite obviously the true position is that such cases were retained by the 20th A. C. M. and the applicant's case was transferred to the 21st A. C. M. on the basis that it was not the case of a child.

3. The applicant then made an application to the District Magistrate raising the question that since he was a child the case ought to be re‑transfer red but the learned District Magistrate rejected his application, holding that the case of the accused was on the border line, that is just above or just below the age limit prescribed for a juvenile. He went on to say that the Law Department has recently clarified that committal cases in which juvenile offenders are involved should be tried exclusively by the Court of Sessions‑a statement the significance of which will presently appear and he accordingly dismissed the application.

4. An application was then filed in the Court on precisely the same grounds as the one on which the present application is sought to be supported but that was dismissed for non‑prosecution. It is urged before me that the applicant is a child within the meaning of the Bombay Children Act and that therefore the 11th A. C. M. is not empowered in law to try the applicant or that in any case it would be desirable that a Juvenile Court

should do so.

5. Now in the first place I do not think it is established at all that the applicant is a child since a child is defined in the Act as being a person under the age of 16 years and, the only thing which supports the applicant on this question is the first medical report given by the doctor at the Borstal Institute‑cum‑Juvenile Jail Admittedly, however, that examination was not conducted with the aid of X‑Ray findings and it is well known that ft is possible to estimate the age by means of X‑Ray tests within much 't accurate limits than by mere ordinary clinical examination. The second examination which has taken place has been with such aid and in this case this doctor has given the opinion that the applicant was about 17 years of age. Even after sufficient allowance is given for the possible margins of error this I think makes it plain that the applicant is above the age of 16 years.

6. The District Magistrate who rejected the application was of the opinion that this was a border‑line case. I do not personally think so but I do not wish to record any finding to that effect and I will assume for the purposes of this application that this might well be a border line case. Now under section 5 of the Bombay Children Act the powers which are conferred by that Act upon Courts are exerciseable not only by Juvenile Courts constituted under that Act or Magistrates of the 1st Class who are so empowered but also by the High Courts and by the Courts of Sessions It is in that connection that it seems that the Law Department said that cases of Juvenile offenders involved in committal cases should be tried exclusively by the Court of Sessions. The obvious reasoning behind this is that since the Court of Sessions is empowered to Act under the Bombay Children Act there would be no difficulty involved if the case was committed to that Court. "Perhaps the learned District Magistrate should have adopted this as his own reasoning instead of merely stating that the Law Department has said so but that after all is a trivial error which hardly affects the merits of his order. Admittedly the applicant is not being tried just now but is merely an accused person in committal proceed ings and he will therefore either be discharged or committed to the Court of Sessions which latter Court is empowered under the Bombay Children Act. I can therefore see no purpose in ordering a transfer of this case and accordingly dismiss this application for transfer."

Petition dismissed.

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