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2012 DIGILAW 1645 (JHR)

Indradeo Hazra v. State of Jharkhand

2012-11-23

H.C.MISHRA

body2012
Judgment Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner is aggrieved by the order dated 28.9.2007 passed by learned the learned Additional Chief Judicial Magistrate, Giridih, in G.R. No.1677 of 1989/T.R. No.37 of 2007, whereby upon an enquiry, learned Additional Chief Judicial Magistrate has held that the petitioner was not a juvenile on the date of occurrence i.e., 20.10.1989, as on that date his age was about 16 years and 9 months. The appeal filed against the said order has been rejected by the learned 1st Additional Sessions Judge, Giridih, by the Judgment dated 19.3.2010 in Cr. Appeal No.101 of 2007. 3. The petitioner has been made accused in Jamua P.S. Case No.195 of 1989, corresponding to G.R. No.1677 of 1989 for the alleged offences under Sections 302 read with Sections 201 and 498A of the IPC and 3 / 4 of the Dowry Prohibition Act. The date of the alleged occurrence is 20.10.1989. The petitioner took the plea that he was a juvenile on that date and accordingly, an enquiry was made in the matter. It would be appropriate to refer to an order dated 18.6.1990 passed by the learned Sessions Judge, Giridih, in B.P. No.261 of 1990, while considering the bail application of the petitioner and the same plea, of being juvenile, was taken before the learned Sessions Judge. The report of the Civil Surgeon was called for, which showed that the age of the petitioner was 15 to 16 years approximately. Learned Sessions Judge also got the petitioner produced in the Court, and in the assessment of the learned Sessions Judge also, the petitioner was under 16 years of age. However, learned Sessions Judge did not record any findings as to the age of the petitioner, and the matter was sent for enquiry. 4. It appears from the impugned order passed by the learned Additional Chief Judicial Magistrate, that during enquiry the father and the mother of the petitioner were examined. Though, their date of examination has not been given in the impugned order, but it appears that on the date of examination, these witnesses had disclosed the age of their son to be 31 years and they further disclosed that the sister of the petitioner was aged about 38 years and the petitioner was seven years younger than his sister. Though, their date of examination has not been given in the impugned order, but it appears that on the date of examination, these witnesses had disclosed the age of their son to be 31 years and they further disclosed that the sister of the petitioner was aged about 38 years and the petitioner was seven years younger than his sister. In view of the fact that there was no education of the petitioner in any Government school, the report of the Medical Board was called for by the Court below and the impugned order shows that the Medical Board's report was sent to the Court below vide Memo No.1873 dated 2.7.2007, according to which the age of the petitioner was assessed to be between 25 to 35 years. The Court has taken the maximum age assessed by the Medical Board and making the conclusion of the age on that basis, it was found that on the date of occurrence, i.e., 20.10.1989, the petitioner was aged more than 16 years and as such he was not a juvenile. It may be stated that as per the law then in force, a male upto the age of 16 years was to be treated as juvenile. The appeal filed against the said order was also dismissed by the learned Appellate Court below. 5. Learned counsel for the petitioner has submitted that the impugned orders passed by the Courts below are absolutely illegal, in as much as, the Courts below have taken the maximum age assessed by the Medical Board, i.e., 35 years and found that the petitioner was not a juvenile on the date of occurrence. Learned counsel has submitted that when the age of the petitioner was given to be 25 to 35 years and according to the evidence of the mother and father also of the petitioner, the age of the petitioner was 31 years, the same should have been relied upon and the calculation ought to have been made taking the age of the petitioner to be 31 years. It is submitted that if the age of the petitioner is calculated relaying upon the evidence of the mother and father of the petitioner, he shall be a juvenile on the date of occurrence. Learned counsel accordingly, submitted that the impugned order cannot be sustained in the eyes of law. 6. It is submitted that if the age of the petitioner is calculated relaying upon the evidence of the mother and father of the petitioner, he shall be a juvenile on the date of occurrence. Learned counsel accordingly, submitted that the impugned order cannot be sustained in the eyes of law. 6. Learned counsel for the State on the other hand has submitted that there is no illegality in the impugned order, in as much as, the Court below, in absence of any birth certificate of the petitioner, has taken into consideration the assessment of the age of the petitioner by the Medical Board and on the basis of that, the petitioner was not found to be a juvenile on the date of occurrence. 7. After having heard learned counsels for both the sides and upon going through the record, I find force in the submission of the learned counsel for the petitioner. The age of the petitioner was assessed by the Medical Board to be between 25 to 35 years as on 2.7.2007. There can be no valid reason for taking only the maximum age as assessed by the Medical Board. The age of the petitioner as disclosed by his parents also falls within the same range and as such, there is no reason as to why the evidence of the parents of the petitioner should be totally discarded. This apart, I find that the Appellate Court below has taken into consideration the order passed by the learned Sessions Judge, Giridih on 18.6.1990 in B.P. No.261 of 1990, which has been brought on record as Annexure – 2 to this application. This order clearly shows that the learned Sessions Judge had also called for the report from the Civil Surgeon, who had opined the age of the petitioner to be between 15 to 16 years and the learned Sessions Judge also got the petitioner produced in the Court and he assessed the age of the petitioner to be under 16 years, though he did give a conclusive finding in view of the fact that the assessment was challenged by the prosecution. However, the fact remains that the assessment of the age by Civil Surgeon as also the Sessions Judge, also fall in line with the age disclosed by the parents of the petitioner and the same also comes within the range of the age assessed by the Medical Board, i.e., 25 to 31 years as on 2.7.2007. In that view of the matter, I am of the considered view that the age of the petitioner ought to have been considered taking his age to be 31 years as on the date of the examination of his parents, as there appears to be nothing on record to disbelieve their testimony. In that view of the matter, the impugned order passed by the Court below cannot be sustained in the eyes of law. 8. In view of the aforesaid discussions, the impugned order dated 28.9.2007 passed by the learned Additional Chief Judicial Magistrate, Giridih, in G.R. No.1677 of 1989 / T.R. No.37 of 2007, as also the Judgment dated 19.3.2010 passed by the learned 1st Additional Sessions Judge, Giridih, in Cr. Appeal No.101 of 2007, are hereby, set-aside. The Court below is directed to pass the order afresh in accordance with law, taking into consideration the evidence of the parents of the petitioner, as the same comes within the range of the age of the petitioner assessed by the Medical Board, as also it falls in conformity with the age of the petitioner as assessed by the learned Sessions Judge, Giridih at the time of considering the bail application of the petitioner. 9. With these directions, this revision application is allowed.