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2012 DIGILAW 908 (PAT)

Chandrika Sao v. State of Bihar

2012-07-03

AMARESH KUMAR LAL, SHIVA KIRTI SINGH, SHYAM KISHORE SHARMA

body2012
JUDGMENT (Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH) Heard learned counsel for the petitioner and learned counsel for the State. Inspite of service of notice OP No. 2 is not represented by any counsel. 2. This Criminal Revision is directed against the order dated 24th July, 2010 passed in Cr. (Juvenile) Appeal No. 14/2010 by the Sessions Judge, Jamui, whereby he declared the OP No.2 as juvenile after setting aside the order dated 10th May, 2010 passed by the Principal Magistrate, Juvenile Justice Board, Jamui in connection with Barhat (Malaypur) P.S.Case No. 92/2009,G.R.No. 1687/2009. 3. The Principal Magistrate, Juvenile Justice Board gave a finding against OP No. 2 in respect of his claim that he was a juvenile mainly on account of date of birth recorded in the school register which was proved by the headmaster of the school. The age in the register of school first attended by the OP No. 2 was different and showed that he had seized to be a juvenile on the date of occurrence, but the subsequently issued matriculation certificate in respect of OP No. 2 showed a different date of birth and entitled him to be declared a juvenile. The learned Principal Magistrate, relied upon Rule 22 (5) of the Bihar Juvenile Justice (Care and Protection of Children) Rules, 2003 (hereinafter referred to as the Bihar Rules), for giving suitable consideration to the date of birth certificate from the school first attended and the date of birth in the matriculation certificate. A perusal of Rule 22 (5) of the Bihar Rules shows that there is no primacy accorded to three kinds of certificate mentioned in Rule 22 (5) and only in absence of such documents, the medical opinion of a Medical Board is required to be obtained for determining the age of the suspected delinquent. 4. A perusal of Rule 22 (5) of the Bihar Rules shows that there is no primacy accorded to three kinds of certificate mentioned in Rule 22 (5) and only in absence of such documents, the medical opinion of a Medical Board is required to be obtained for determining the age of the suspected delinquent. 4. The order of the Principal Magistrate, Juvenile Justice Board was reversed by the Sessions Judge, Jamui in appeal on the basis of Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 framed by the Central Government which accords primacy to the matriculation and equivalent certificate by providing that only in the absence of such certificate the other two kinds of certificate i.e. the date of birth certificate from the school first attended or in its absence the birth certificate given by a Corporation or a Municipal authority may be sought as evidence of age of the suspected delinquent. 5. The learned Single Judge while hearing this Criminal Revision came to a tentative finding that the Bihar Rules had rightly been followed by the Principal Magistrate, but instead of deciding the matter finally, on account of significance of the issue involved the matter was referred to the Division Bench to answer the following proposition :- “Faced with different entries regarding the date of birth relating to the same individual in more than one document, all being admissible for the purposes of declaring a person juvenile, how the same should be done in light of the provisions of Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 read with Rule 22 (5) of the Bihar Juvenile Justice (Care and Protection of Children) Rules, 2003?” 6. We have heard the parties and find that the points referred for consideration by this Division Bench can be clearly answered on going through the relevant provisions contained in Section 68 of Juvenile Justice (Care and Protection of Children) Act, 2000 as amended from time to time. Both the Governments, State and Central derive authority to frame Rules for carrying out the purposes of the Act under the aforesaid Section 68. Proviso to Section 68 was subsequently inserted by amendment made in the year 2006 with effect from 22.8.2006. Prior to that only State Government had the power to make Rules. Both the Governments, State and Central derive authority to frame Rules for carrying out the purposes of the Act under the aforesaid Section 68. Proviso to Section 68 was subsequently inserted by amendment made in the year 2006 with effect from 22.8.2006. Prior to that only State Government had the power to make Rules. Since Section 68(1) and its proviso are of significance, they are extracted hereinbelow :- “68 (1) The State Government may, by notification in the Official Gazette, make Rules to carry out the purposes of this Act. [Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government may make rules under this section, and where any such model rules have been framed in respect of any such matter, they shall apply to the State until the rules in respect of that matter is made by the State Government and while making any such rules, so far as is practicable, they conform to such model rules.]” 7. A perusal of the proviso shows that the Central Government have been authorized only to frame model Rules in respect of matters for which the State Government may make Rules. Such model Rules framed by the Central Government are to apply to the State only till the Rules in respect of that matter is made by the State Government and while making any such Rules, only so far as is practicable the State Government may conform to such model Rules. 8. Clearly superiority has been conferred upon the Rules made by the State Government. The Rules of the Central Government are only described as model Rules and they are to hold the field if it is vacant and once the State Government has framed the Rules, only such Rules are to be followed by the Courts within the State of Bihar. The superior status of the State Government in the matter of framing of Rules is also clear from the proviso according to which the State Government is required to conform to the model Rules only as far as is practicable. Clearly the State Government is not bound to follow the entire provisions of the Model Rules framed by the Central Government. 9. Clearly the State Government is not bound to follow the entire provisions of the Model Rules framed by the Central Government. 9. In the present case the Rules framed by the State Government are occupying the field since 2003 and there is no provision in the Act which empowers the Central Government to modify, supersede or amend the Rules framed by the State Government. Model Rules could have been applicable in the State of Bihar only if no Rules had been framed by the State Government. 10. In view of aforesaid discussion, in our considered view the point referred by the learned Single Judge is answered by the proviso to Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Age of suspected juvenile is required to be determined by the Juvenile Justice Boards in accordance with Rule 22 (5) of the Bihar Rules and not in accordance with Rule 12 (3) of the Central Rules of 2007. 11. Having answered the reference we remit the matter back to the learned Single Judge for deciding this Criminal Revision application in accordance with law.