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2012 DIGILAW 779 (JHR)

Rajeev Gope v. State of Jharkhand

2012-05-18

H.C.MISHRA

body2012
Judgment Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner is aggrieved by the Judgment dated 18.2.2012 passed by the learned Sessions Judge, West Singhbhum at Chaibasa, in Cr. Appeal No.48 of 2010, whereby the appeal filed against the order dated 30.11.2010 passed by learned Chief Judicial Magistrate, Chaibasa, in G.R. Case No.443 of 2010, rejecting the claim of the petitioner to be juvenile, was dismissed by the learned Appellate Court below. 3. The facts of the case lie in short compass. Petitioner has been made accused in Gua (Barajamda) P.S. Case No.49 of 2010, corresponding to G.R. No.443 of 2010 for the offence under Section 302/201/379/34 of the IPC. The date of occurrence is 11.8.2010. It appears that the petitioner was apprehended in connection with this case and in the Court below the petitioner claimed to be a juvenile. The Court below itself entered into an enquiry for determining the age of the petitioner and in course of enquiry, the School Leaving Certificate of the petitioner was produced. Two witnesses were examined in support of the claim of the petitioner in the Court below, in which PW – 2 Dasrath Gope, who is uncle of the petitioner, had produced the School Leaving Certificate of the petitioner and in his cross-examination, this witness had disclosed that the petitioner was eight years younger than him (PW – 2). The Court below found that the uncle of the petitioner was about 30 years of age and deducting 8 years from his age, petitioner appeared to be more than 21 years of age on the date of occurrence. The Court below also taken into consideration the physical built of the petitioner and held that the petitioner was not a juvenile. The appeal filed against the said order was also rejected by the Appellate Court below by Judgment dated 18.2.2011. 4. Learned counsel for the petitioner has submitted that the impugned order passed by the Courts below are absolutely illegal, in as much as, the petitioner had proved the School Leaving Certificate, which has also been brought on record in this case as Annexure – 2. 4. Learned counsel for the petitioner has submitted that the impugned order passed by the Courts below are absolutely illegal, in as much as, the petitioner had proved the School Leaving Certificate, which has also been brought on record in this case as Annexure – 2. It has also been submitted that a teacher of the said school was also examined in the Court below, who has proved the entries in admission register, wherein the date of birth of the petitioner was recorded as 22.2.1993, according to which, the petitioner was a juvenile on the date of occurrence. Learned counsel accordingly submitted that the impugned order cannot be sustained in the eyes of law. 5. Learned counsel for the State opposed the prayer of the petitioner. 6. After having heard learned counsel for the parties and upon going through the record, I find that the certificate which was produced in the Court below, was issued on 27.8.2010, i.e., soon after the date of occurrence, i.e., 11.8.2010. As such, it clearly gives an impression that the certificate has been obtained for the purpose of this case only. It also appears that the uncle of the petitioner had given the age difference between himself and the petitioner, according to which, the petitioner was not a juvenile on the date of occurrence. The Court below has also taken into consideration the physical built up of the petitioner also and has found that the petitioner was not a juvenile. 7. The procedure to be adopted in determination of the age of the child or juvenile in conflict with law is prescribed in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007, which reads as follows: “12. Procedure to be followed in determination of Age.- (1) *** *** *** (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise 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 appearance 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 certificate, 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. (4). *** *** *** (6) *** *** ***.” 8. Rule12(3)(b) of the aforesaid Rules provide that in absence of Matriculation or the other documents concerning the age, the medical opinion shall be sought from the duly constituted Medical Board which will declare the age of the juvenile/ child. The School Leaving Certificate produced in the Court below was discarded by the Courts below, and rightly so, because the same did not inspire confidence, as the uncle of the petitioner who proved the said certificate, disclosed the difference of age between himself and the petitioner, according to which the petitioner is not a juvenile. This apart, the said certificate is issued soon after the date of occurrence, thus giving an impression that the same might have been manufactured for the purpose of this case. This apart, the said certificate is issued soon after the date of occurrence, thus giving an impression that the same might have been manufactured for the purpose of this case. As the said certificate was discarded by the Court below, in my considered view, the case of the petitioner is clearly governed by Clause (b) of Rule 12(3) as aforementioned, which provides that in absence of any certificate as mentioned in sub clauses (i),(ii) or (iii) of clause (a) of Rule 12(3), the opinion of the Medical Board shall be sought, which shall declare the age of the juvenile or child. That having not been done in this case, in my considered view, the orders passed by both the Courts below cannot be sustained in the eyes of law and as such, it is a fit case for remand to the Court below for reconsidering the age of the petitioner in accordance with law. 9. In view of the aforementioned discussions, the order dated 30.11.2010 passed by the learned Chief Judicial Magistrate, Chaibasa, in G.R. Case No.443 of 2010, as also the Judgment dated 18.2.2011 passed by learned Sessions Judge, West Singhbhum at Chaibasa, in Cr. Appeal No.48 of 2010, are hereby, set-aside and the learned Chief Judicial Magistrate, Chaibasa, is directed to pass fresh order in accordance with law after getting the opinion of the Medical Board and in accordance with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. This application is accordingly, allowed with the directions as above.