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2007 DIGILAW 90 (CAL)

RAJU MITRA v. STATE OF WEST BENGAL

2007-02-14

PRAVENDU NARAYAN SINHA

body2007
( 1 ) THE Judgement of the Court was as follows : this matter has appeared in the list on mentioning of Mr. Banerjee, the learned Advocate for the petitioner. ( 2 ) MR. Banerjee, learned Advocate for the petitioner submits that the petitioner is an accused in connection with Jalpaiguri Kotwali P. S. Case No. 116 of 1990 dated 22. 03. 1990 under Sections 493/376 of the. P. C. When the accused-petitioner was brought under arrest, a plea was raised that he was a juvenile and did not complete the age of 18-years on the date of incident and considering that bail was granted to him. Thereafter, the ossification test was done when he was produced but the learned Magistrate did not consider that he was a juvenile. Subsequently, the case was committed to the Court of sessions and it was transferred to the Court of the learned Additional Sessions judge, 1 st Court, Jalpaiguri and at the stage of 227/228 of Cr. P. C. , such plea was not raised nor the learned Court looked into the lower Court records to ascertain whether the petitioner was a juvenile of not. After the trial commenced, the petitioner raised the plea that he was a juvenile and the learned Additional sessions Judge by his order dated 1. 8. 2002 rejected the said prayer and also observed that there cannot be any scope for further enquiry to determine the age of the accused. According to Mr. Banerjee, the observation made by the learned Additional Sessions Judge was erroneous and enquiry is needed to ascertain the age of the accused on the date of incident. ( 3 ) MR. Subhasish Pachhal, learned Advocate for the State submits that when a plea was raised by the accused petitioner, the learned Judge ought to have made an enquiry because the school certificate does not always reveal the correct age. The school certificate has evidentiary value no doubt, but cannot be regarded as conclusive proof of age. ( 4 ) AFTER hearing the submission of the learned Advocates for the parties and going through the contents of the revisional application and materials on record, I am of opinion that the learned Judge made mistake by placing reliance on the ossification test. ( 4 ) AFTER hearing the submission of the learned Advocates for the parties and going through the contents of the revisional application and materials on record, I am of opinion that the learned Judge made mistake by placing reliance on the ossification test. Ossification test can show only probable age and it can not reflect the correct age of a person as two years either way is always permissible in respect of age appeared in the opinion of the Doctor in the ossification test. Ossification test is done after considering some joints and parts of body of a human and in a vast country like India where temperatures are varied in different regions, the ossification test does not always reflect the correct age of a person. ( 5 ) IN this matter, the F.. R, was lodged on 22nd March, 1996 and the incident was prior to that. When an accused raises a plea before the Court during enquiry, investigation or trial that he was a juvenile and did not complete particular age on the date of incident, the proper course for the said Court is to hold an enquiry to ascertain the age of such accused on the date of incident. During enquiry, the Court has to record evidence of parents of the accused as the parents of that person are the best persons to lead evidence before the court in respect of date, month and year of birth. It parents are not alive, the guaidians of the accused who can throw proper and direct light before the court concerning the date, month and year of birth of the accused should be examined. Besides that, if there is a school certificate showing age of the accused, a reasonable person of the said school should be examined before the Court to show what was the age that was recorded in the School Admission register and what type of information was made before the school when the said accused as student was admitted into the school and what was the age that was recorded in the School Admission Register. The Court may also call for records from the concerned office of the Registrar of Births and Deaths for ascertaining whether any information relating to the birth of the said person was registered and what were the date, month and year of such birth and who was the person who gave such information for registration of birth and how competent the said man was to register the Information and if required the court may examine any persons of such office. If the accused was born either in any Matrisadan , Hospital or Nursing Home, any responsible person of such institution may be called for by the Court for examination along with relevant papers for verification relating to the date, month, year as well as the sex of the child who was born in such Institution. After such enquiry on the basis of such oral and documentary evidence, the Court would arrive at a decision as to the age of the accused petitioner on the date of the incident. The leaned court would also take into consideration the age reflected in the ossification test and after consideration of all such papers the Court would arrive at a decision relating to the age of the accused petitioner on the date of incident. The School Admission Register has evidentiary value but cannot be regarded as a conclusive proof to establish the age of the accused petitioner. ( 6 ) ACCORDINGLY the order of the learned Judge and his observation that, there cannot be scope of further enquiry bring not in accordance with law is set aside. The learned Additional Judge, 1 st Court, Jalpaiguri is accordingly directed to hold an enquiry to ascertain age of the accused petitioner on the date of incident and if after such-enquiry, the said Court finds that the accused petitioner was a juvenile he would proceed with the matter in accordance with law as reflected in the Juvenile Justice. Act, 1986. The learned Judge would also consider whether Juvenile Justice Act, 1986 or subsequent Act of 2000 is applicable in this matter when the incident occurred in 1996. If after enquiry, the learned Judge finds that the accused was not a juvenile, the learned Judge will proceed with the trial. Act, 1986. The learned Judge would also consider whether Juvenile Justice Act, 1986 or subsequent Act of 2000 is applicable in this matter when the incident occurred in 1996. If after enquiry, the learned Judge finds that the accused was not a juvenile, the learned Judge will proceed with the trial. The learned Judge is directed to complete the enquiry as expeditiously as possible and preferably within a period of three months from the date of communication of this order and thereafter to proceed with the matter in accordance with law. ( 7 ) THE revisional application is accordingly disposed of in the light of the observations made above. ( 8 ) CRIMINAL Section is directed to forward a copy of this order to the learned Additional Sessions Judge, 1st Court, Jalpaiguri for information and necessary action. ( 9 ) CRIMINAL Section is directed to supply the certified copy of this order to the learned Advocate for the petitioner, if applied for.