Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 32 (CAL)

Md. Suifuddin v. Union of India

2016-01-13

R.K.BAG

body2016
JUDGMENT : R.K. BAG, J. The petitioner has challenged the order dated February 20, 2014 passed by learned Additional Sessions Judge-cum-Judge, Special Court under Narcotic Drugs and Psychotropic Substances Act, Berhampore, Murshidabad in connection with N.D.P.S. Case No. 33 of 2009 by filing this revision under Section 401 read with Section 482 of the Code of Criminal Procedure. 2. It appears from the materials on record that the petitioner is facing trial before the court of learned Judge on the allegation of committing offence under Section 20(b)(ii)(c)/ 27A/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner claimed for transfer of the case to the Juvenile Justice Board by raising the plea of juvenility before the trial court on September 5, 2012. Learned Judge of the trial court dismissed the application filed by the petitioner by turning down the plea of juvenility of the petitioner by passing order on February 20, 2014 which is under challenge in this revision. It appears from the impugned order under challenge in the revision that the petitioner relied on the birth certificate issued by Registrar of Births and Deaths, Dighabajar, S.D., Assam on May 25, 2012. On the other hand, the opposite party relied on the driving licence of the petitioner issued on January 24, 2007. While driving licence of the petitioner pointed out the date of birth as on June 25, 1988, the birth certificate issued by the Registrar of Births and Deaths of Dighabajar, S.D., Assam indicates the date of birth as on January 18, 1992. Learned Judge of the trial court did not rely on the said birth certificate as the petitioner applied for obtaining the birth certificate only on May 15, 2012, which is almost after 20 years of taking birth and after registration of this criminal case against the petitioner. 3. With the above factual matrix Mr. Chatterjee, learned counsel for the petitioner contends that learned Judge of the court below did not conduct the enquiry as laid down in Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. By referring to the said Rules Mr. Chatterjee submits that in the absence of matriculation certificate, learned Judge of the court below should have relied on the birth certificate of the petitioner as laid down in the Rules. The further submission of Mr. By referring to the said Rules Mr. Chatterjee submits that in the absence of matriculation certificate, learned Judge of the court below should have relied on the birth certificate of the petitioner as laid down in the Rules. The further submission of Mr. Chatterjee is that learned Judge cannot rely on the date of birth recorded in the driving licence issued in favour of the petitioner as the said document is absent from Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. 4. On the other hand, Mr. Dey, learned counsel for the Opposite Party contends that learned Judge of the trial court has followed the procedure laid down in Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 for determination of age of the petitioner. According to Mr. Dey, learned Judge of the court below can consider the driving licence which was issued in favour of the petitioner for determination of date of birth of the petitioner. 5. Having heard the learned counsel representing the respective parties, I would like to hold that whenever a party will raise the plea of juvenility before the trial court, learned Judge of the trial court will make an enquiry, take evidence, if necessary, for determination of age of the party and shall record a clear fining whether the said party is juvenile as laid down in Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000. On perusal of the impugned order under challenge I do not find that learned Judge of the trial court has recorded any evidence as laid down in Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000. The “enquiry” referred to in Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 must be conducted by learned Judge of the court below in accordance with the procedure laid down in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. It is relevant to quote Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which is follows:- “12. Procedure to be followed in determination of age. It is relevant to quote Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which is follows:- “12. Procedure to be followed in determination of age. - (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or as the case may 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 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. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 6. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 6. On perusal of the above Rules it appears that learned Judge of the court below will consider the documents as laid down in Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and in the absence of such documents the opinion of the Medical Board is to be obtained for determination of the age of the juvenile. 7. In view of the above provision of law learned Judge of the trial court should have considered whether the birth certificate of the petitioner issued by the Registrar of Births and Deaths, Dighabajar, S.D., Assam is issued by the Local Body as laid down in Rule 12(3)(d)(iii) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. It is clearly mentioned in the said birth certificate that the information is collected from the original record of birth maintained by the Local Body. Learned Judge of the court below should have summoned the appropriate authority to explain how the date of birth of the petitioner was recorded in the register of births and deaths after lapse of 20 years of birth of the petitioner. Learned Judge of the court below also should have recorded the evidence without relying on the driving licence of the petitioner for determination of age of the petitioner. In the absence of any document enumerated in Rule 12(3)(a) of the Juvenile Justice (Care and Protection of Children) Rules 2007, learned Judge of the trial court could have obtained the opinion of the Medical Board for determination of age of the petitioner. In view of my above findings I am of the view that the order passed by learned Judge of the court below is not justified under the law. 8. Accordingly, the order dated February 20, 2014 passed by learned Additional Sessions Judge-cum-Judge, Special Court under Narcotic Drugs and Psychotropic Substances Act, Berhampore, Murshidabad in connection with N.D.P.S. Case No. 33 of 2009 is set aside. 8. Accordingly, the order dated February 20, 2014 passed by learned Additional Sessions Judge-cum-Judge, Special Court under Narcotic Drugs and Psychotropic Substances Act, Berhampore, Murshidabad in connection with N.D.P.S. Case No. 33 of 2009 is set aside. Learned Judge of the court below is directed to consider the plea of juvenility of the petitioner afresh in accordance with the provisions of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 within a period of three months from the date of communication of the order after giving an opportunity of hearing to both parties. 9. With the above direction criminal revision is disposed of. 10. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.