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2012 DIGILAW 743 (JHR)

Prakash Kumar Sharma v. State of Jharkhand

2012-05-11

H.C.MISHRA

body2012
JUDGMENT Heard the learned counsel for the petitioner and the learned counsel for the State. 2. Petitioner is aggrieved by the order dated 21.9.2011 passed by the learned Assistant Sessions Judge-II, Dhanbad in Sessions Trial No.249 of 2008, whereby, the claim of the petitioner that he was juvenile on the date of the occurrence, was rejected by the Court below. 3. It appears from the impugned order that the occurrence had taken place on 24.2.2008, for which, the petitioner was facing the trial and the petitioner claimed to be a juvenile. It further appears from the impugned order that no certificate with respect to age or any other evidence could be adduced by the defence and accordingly, the opinion of the Medical Board was sought for, for determination of age of the petitioner. The Medical Board submitted its report vide letter dated 23.3.2011 assessing the age of the petitioner to be 22 years as on 17.3.2011. The Court below found that on the basis of the medical assessment, the age of the petitioner on the date of the occurrence i.e 24.2.2008 was eighteen years, eleven months and seven days. Learned Court below, accordingly, rejected the prayer of the petitioner, holding that he was above 18 years on the date of the occurrence even according to the opinion of the Medical Board. 4. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law. It has been further submitted that as per the rules prescribed, the petitioner was also entitled to the benefit by considering his age on the lower side within the margin of one year and if the margin of one year is given, the petitioner shall become juvenile on the date of the occurrence i.e. on 24.2.2008. Learned counsel accordingly, submitted that the impugned order cannot be sustained in the eyes of law. 5. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the Medical Board was constituted for determination of age of the petitioner which has found the petitioner to be about 22 years as on 17.3.2011. The date of occurrence being 24.2.2008, the petitioner is certainly more than 18 years of age on the said date and accordingly, he cannot be said to be a juvenile on that date. 6. The date of occurrence being 24.2.2008, the petitioner is certainly more than 18 years of age on the said date and accordingly, he cannot be said to be a juvenile on that date. 6. The procedure to be followed in determination of age of a child or a juvenile in conflict with law is prescribed under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007. Rule 12 (3) which reads as follows:- “12. Procedure to be followed in determination of age – **** ** (2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or other wise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a) (i) the matriculation or equivalent certificates, if available , and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i) , (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his / her age on lower side within the margin of one year, and while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (I), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. ** ** ** ” (Emphasis supplied). 7. Thus, from the plain reading of the Rule, it is apparent that when no certificate or other proof about the date of birth of the juvenile is available, the opinion of the Medical Board is to be taken under clause (b) of Rule 12 (3) and in case, the exact assessment of age cannot be done, the Court, or the J.J. Board or the Committee, may give benefit to the child or juvenile by considering his / her age on the lower side within the margin of one year, for the reasons to be recorded and if considered necessary. 8. In that view of the matter, whether there was any necessity for giving the benefit to the juvenile by considering his age on the lower side within the margin of one year or not, is a question of fact which is required to be decided by the Court, or the J.J. Board or the Committee, by a reasoned order, depending upon the facts of an individual case. In the facts of the case in hand, as per the medical opinion, the age of the petitioner on the date of the occurrence i.e. 24.2.2008 was eighteen years, eleven months and seven days. Thus, if the benefit is given to the petitioner considering his age on the lower side within the margin of one year, the petitioner would certainly be a juvenile on the date of occurrence. Thus, if the benefit is given to the petitioner considering his age on the lower side within the margin of one year, the petitioner would certainly be a juvenile on the date of occurrence. However, it was for the Court below to decide by a reasoned order, taking into consideration the other factors regarding the age of the petitioner, whether or not the benefit was required to be given to the petitioner considering his age on the lower side within the margin of one year. The impugned order clearly shows that this question of fact has not been considered at all by the Court below, as required under Rule 12 (3) (b) quoted above, in its order dated 21.9.2011. This aspect of the matter, having not been considered by the Court below at all, the impugned order cannot be sustained in the eyes of law. 9. Accordingly, the impugned order dated 21.9.2011 passed by the learned Assistant Sessions Judge-II, Dhanbad in S.T No. 249 of 2008 is, hereby, set aside and the Court below is directed to pass fresh order in accordance with law, taking into consideration the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, which prescribes in detail, the procedure to be followed in determination of age of a child or a juvenile in conflict with law. 10. With the directions and observations as above, this application is, hereby, allowed.