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2013 DIGILAW 613 (JHR)

Amit Goswami @ Chhotu v. State of Jharkhand

2013-05-09

H.C.MISHRA

body2013
ORDER 1. Heard learned counsel for the petitioner and the learned counsel for the State. 2. The petitioner is aggrieved by the order dated 23.01.2013 passed by the learned Additional Sessions Judge – III, Jamshedpur, in S.T. No. 35 of 2012 whereby, the application filed by the petitioner for declaring him to be a juvenile has been rejected by the Trial Court. 3. It appears that the petitioner has been made accused in Kadma P.S. Case No. 168 of 2011 corresponding to G.R. No. 2343 of 2011 for the offence under Sections 306, 376/34 of the Indian Penal Code. 4. The case was investigated and after submission of the charge sheet and cognizance, the case was committed to the Court of Session, where the petitioner filed his application for declaring him to be juvenile and the Court entered into an enquiry for assessing the age of the petitioner, in which, the petitioner produced one School Leaving Certificate showing his date of birth to be 25.01.1994. The mother of the petitioner was also examined by the Court below who also gave the same date of birth of the petitioner. 5. However, the School Leaving Certificate of the petitioner could not be proved in the Court below and it was only marked ‘X’ for identification. Accordingly, a Medical Board was constituted for assessing the age of the petitioner and the Medical Board has assessed the age of the petitioner to be 20 years (±) one year, as on 11.10.2012. The Court found that the date of occurrence in the case was from 15.10.2011 to 21.10.2011 and as such, the petitioner was not a juvenile on the said date and has rejected the application filed by the petitioner. 6. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, in as much as, even though the School Leaving Certificate could not be proved in the Court below and the Court below has doubted the genuineness of the same as it has not been issued by any recognized board, but the mother of the petitioner had deposed the date of birth of the petitioner to be 25.01.1994 and there is no reason for not relying upon the same. 7. Learned counsel for the State on the other hand, has submitted that there is no illegality in the order. 8. 7. Learned counsel for the State on the other hand, has submitted that there is no illegality in the order. 8. After having heard learned counsels for both the sides and upon going through the record, I find that the certificate produced by the petitioner in the Court below could not be proved and its genuineness has also been doubted by the Court below on the valid grounds. The mother of the petitioner had only supported the date of birth as given in the certificate for obvious reasons. 9. In that view of the matter and I am of the considered view that the Court below had taken the right step for assessing the age of the petitioner by the Medical Board, which assessed the age of the petitioner to be 21 years (±) one year, as on 11.10. 2012. If the age of the petitioner is taken to be 19 years as on 11.10.2012, as the Medical Board has assessed the age of the petitioner to be (±) one year on that date, and the age of the petitioner is assessed in accordance with Rule 12 (3)(b) of the Juvenile Justice (Care & Protection of Children) Rules, 2007, considering his age to be on the lower side within the margin of one year, the age of the petitioner may come below 18 years on the date of occurrence. 10. In that view of the matter and I am of the considered view that the Court below has committed an error by not considering the age of the petitioner in accordance with the procedure prescribed in Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 and has decided the age of the petitioner without taking into consideration the said Rules. Accordingly, the impugned order passed by the Court below cannot be sustained in the eyes of law. 11. In view of the above discussions, the impugned order dated 23.01.2013 passed by the Court of learned Additional Sessions Judge – III, Jamshedpur in S.T. No. 35 of 2012, is hereby, set aside, and the Court below is directed to pass the order afresh taking into consideration the provisions of Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007. 12. This application is, accordingly, allowed.