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2011 DIGILAW 498 (JHR)

Govind @ Govind Turi v. The State of Jharkhand

2011-06-14

JAYA ROY

body2011
ORDER Heard the learned counsel for the petitioner and the counsel for the State. 2.The petitioner has filed this application for setting aside the order 23.6.2010 passed by the learned Sessions Judge, Bokaro in Cr. Appeal No.35 of 2010 affirming the order dated 22.3.2010 passed by the learned Chief Judicial Magistrate, Bokaro in G.R. No. 118 of 2010 arising out of Harla P.S. Case No.8 of 2010 whereby the prayer for declaring the petitioner as juvenile has been rejected. 3. The counsel for the petitioner submits that the date of birth of the petitioner is 18.12.1993 and as alleged, the date of occurrence is 21.1.2010 and as such, he was juvenile on the alleged date of occurrence and on the basis of this, the petitioner has filed a petition with a prayer to send his case record to Juvenile Justice Board. 4. The counsel for the petitioner further submits that the mother of the petitioner has filed an affidavit that according to the Horoscope, the date of birth of the petitioner is 18.12.1993. On the basis of this affidavit, the court below referred the matter to the Medical Board for determination of the age of the petitioner. The Medical Board has submitted its report on 22.3.2010 in which it has been stated that the age of the petitioner has been assessed between 18-19 years. The court below, on the basis of this report, declared the petitioner as major and rejected his petition for declaring him as juvenile. It is further contended that the alleged occurrence took place in January, 2010 and the Medical Board has examined the petitioner and submitted its report in March, 2010. According to the provisions of Rule 2007, the benefit must be given to the juvenile and the lower side of his age to be considered. Therefore, if it is taken as 18 years and taking one year margin, definitely the petitioner was juvenile at the time of alleged occurrence. 5.The counsel for the State has submitted that it is a case of kidnapping of two minor girls and the age of this petitioner has been assessed by the Medical Board between 18-19 years. Even if the lower end of his age is taken into consideration, the petitioner was major at the time of alleged occurrence. 5.The counsel for the State has submitted that it is a case of kidnapping of two minor girls and the age of this petitioner has been assessed by the Medical Board between 18-19 years. Even if the lower end of his age is taken into consideration, the petitioner was major at the time of alleged occurrence. To support his contention, he has cited a decision of the Apex Court reported in 2008 (2) Eastern Criminal Cases11(SC) (Jyoti Prakash Rai Versus State of Bihar. 6.Admittedly, the alleged date of occurrence is January, 2010 and the age of the petitioner was assessed by the Medical Board in March, 2010 is between 18-19 years. The Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003, provides sub-Rule (5) of Rule 22 also lays down the procedure to be followed by a Board in holding inquiries and the determination of age which reads as follows : “5. In every case concerning a juvenile or a child, the Board shall either obtain, (i) a birth certificate given by a corporation or a Municipal Authority; or (ii) a date of birth Certificate from the School first attended; of (iii) Matriculation or equivalent Certificates, if available; and (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board subject to a margin of one year in deserving cases for the reasons to be recorded by such Medical Board, (regarding his age and, when passing orders in such case shall, after taking into considerations such evidence as may be available or the medical opinion, as the case may be record a finding in respect of his age.” 7.Considering the admitted facts, and considering the rules in this regard, if the lower side of the age of the petitioner, as come in the Medical Board’s report, is taken it would be 18 years in March, 2010 and as the alleged occurrence is of January, 2010. Definitely there is some doubt whether the petitioner has completed his 18 years of age in January, 2010 or thereafter. As there is some doubt, therefore, benefit of doubt should go in favour of the petitioner. 8.Considering all these aspects, I find merit in this revision application. Definitely there is some doubt whether the petitioner has completed his 18 years of age in January, 2010 or thereafter. As there is some doubt, therefore, benefit of doubt should go in favour of the petitioner. 8.Considering all these aspects, I find merit in this revision application. Accordingly, the impugned order dated 23.6.2010 is set aside and I declare the petitioner as juvenile as there is some doubt whether even according to the Medical Board’s report he had completed 18 years of age on the date of alleged occurrence. The case is remitted back to the court below for passing an appropriate order for referring the case of the petitioner to the Juvenile Justice Board. 9.Accordingly, this revision application is allowed.