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2017 DIGILAW 644 (ORI)

Ujala Patra v. State of Orissa

2017-06-30

B.K.NAYAK

body2017
JUDGMENT : B. K. Nayak, J. 1. In this application under Section 482,Cr.P.C., the petitioners challenge the order dated 08.09.2016 passed by the learned Special Judge-cum-Sessions Judge, Gajapati in G.R. Case No.34 of 2015 holding that the petitioners are not juveniles on the date of alleged commission of offence by them. 2. Petitioners have been implicated in the aforesaid G.R. Case in the Court of the learned Special Judge-cum-Special Judge, Gajapati, Parlakhemundi for alleged commission of offences under section 20 (b) (ii) (c), 25 and 27 of the NDPS Act. The Case arose out of R. Udaygiri P.S. Case No.44 of 2015 dated 30.08.2015 which was registered on the basis of FIR lodged by the S.I. of Police R. Udaygiri P.S. to the effect that having received reliable information on 30.08.2015 that Gajna (Cannabis) will be transported in a Mahendra Bolero Pick-up Vehicle through Kirama-Chudanagar Road, the informant along with other police staff waited by the side of the road near village Jarigidua. It is alleged that at about 3:00 A.M. one Mahendra Bolero Pickup Vehicle having Registration No.OD-07F-7751 came on the road from Kirama side. The informant detained the vehicle for verification and found that two persons including the driver were sitting in the cabin of the vehicle whereas four persons were sitting in the dala of the said vehicle. It was further found that fourteen number of large jari bags packed with contraband ganja and two motor cycles were loaded on the dala of the said vehicle. The informant drew up F.I.R. and took up investigation. On completion of investigation charge-sheet was filed against the petitioners and some others on 04.02.2016. 3. On 26.08.2016 the petitioners filed a petition before the learned Special Judge-cum-Sessions Judge, Gajapati claiming themselves to be juveniles on the date of the alleged occurrence. Learned Special Judge conducted an inquiry as to the age of the petitioners and by the impugned order rejected the petition holding that none of the petitioners is a juvenile on the date of alleged occurrence. 4. Learned counsel for the petitioners contended that in the inquiry into the juvenility of the petitioners the Sikshya Sahayak of Government UGH School appeared and produced the school admission register. The Sikshya Sahayak of that school who produced the original school admission register was examined as witness No.2. 4. Learned counsel for the petitioners contended that in the inquiry into the juvenility of the petitioners the Sikshya Sahayak of Government UGH School appeared and produced the school admission register. The Sikshya Sahayak of that school who produced the original school admission register was examined as witness No.2. Further the transfer certificates in respect of the three petitioners from different schools were also filed during inquiry. Affidavit with respect to the date of birth of the petitioners were also filed by the parents of the petitioners and that as per the school admission registers the date of birth of the petitioner No.1 is 15.03.1998 and that of petitioner No.2 is 06.04.1999 and that of petitioner No.3 is 15.03.1998, and, therefore, they were all below eighteen years of age on the date of the alleged occurrence. But the school admission registers have been wrongly discarded by the learned Special Judge on that ground that the Headmaster who actually admitted the aforesaid accused persons in the aforesaid schools are not examined. Learned State Counsel while defending the impugned order further submitted that in absence of acceptable proof, the petitioners should have been subjected to medical test by the medical board for determination of their age, which has not been done. Therefore, the impugned order suffers from no infirmity. 5. In the case of Ashwani Kumar Saxena V. State of Madhya Pradesh (2012) 9 SCC 750 is as follows:- “32. “Age determination inquiry” contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in the process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the Court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court needs to obtain the birth certificate given by a corporation or a municipal authority of a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year. 33. Once the court, following the above mentioned procedures, passes an order, that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in sub-rule (5) of Rule 12 that no further inquiry shall be conducted by the court or the board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of Rule 12. Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination. 34. Age determination inquiry contemplated under the JJ Act and the 2007 Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion, etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination.” 6. In the aforesaid case the school admission register was produced by the Headmaster who is the custodian of the said register in proof of the date of birth of the accused entered in that register but the Sessions Judge did no place reliance on the same for want of medical examination of the accused with regard to his age. Therefore, the Apex Court further held as follows:- “43. Therefore, the Apex Court further held as follows:- “43. We are of the view that the admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility. 44. We are, therefore, of the view that the appellant has successfully established his juvenility on the date of occurrence of the crime i.e. 19.10.2008 on which date he was aged only 17 years 11 months 25 days. The appellant has already faced the criminal trial in Sessions Case No.28 of 2009 and the court found him guilty along with two others under Section 302, IPC and has been awarded life imprisonment which is pending in appeal, before the Hon’ble Court at Jabalpur as Crime Appeal No.1134 of 2009.” 7. In the case of Ranjeet Goswami v. State of Jharkhand and another; (2013) 56 OCR (SC) - 721, placing reliance on the decision in the case of Ashwani Kumar Saxsena (supra) the Apex Court held follows:- “10. We, therefore, find no reason to reject the school leaving certificate. If that be so, as per the ratio laid down in Ashwani Kumar Saxsena (supra) there is no question of subjecting the accused to a medical examination by a medical board. Going by the school leaving certificates since the appellant was a juvenile on the date of occurrence, he can be tried only by the JJ Board. Consequently, the order passed by the high Court is set aside and that of the Sessions Judge, Dumka is restored. The appeal is allowed, as stated above.” 8. This Court relying upon the decision in the case of Ashwani Kumar Saxsena (supra) has also held in the case of Devi Prsad Sahu v. State of Orissa; 2014 (II) OLR-105 that the determination of age by examining the Headmaster of the nodal U.P School and accepting the school admission registers shall take precedence over the medical opinion. 9. This Court relying upon the decision in the case of Ashwani Kumar Saxsena (supra) has also held in the case of Devi Prsad Sahu v. State of Orissa; 2014 (II) OLR-105 that the determination of age by examining the Headmaster of the nodal U.P School and accepting the school admission registers shall take precedence over the medical opinion. 9. In the instance case it is found from the order sheets of the learned Court below that school leaving certificates of the petitioners and the original school admission registers were produced and even the Sikshya Sahayak of the said school who produced the admission registers was examined. Affidavits of the parents with regard to dates of birth of the petitioners, which were consistent with the entries in the school admission register, were also produced. It also appears that after the inquiry the Court below retained the certified copies of the school admission registers and returned the original school admission registers. There is no contrary evidence to the effect that the dates of birth of the petitioners were different than those recorded in the school admission registers and the school leaving certificates. In the aforesaid circumstances, keeping in view the principles laid down by the Hon’ble Apex Court as noticed earlier, mere non-examination of the Headmaster of the school who initially admitted the accused persons in the school, cannot be a ground not to rely on those school admission registers and the school leaving certificates in proof of age of the petitioners. 10. In the circumstances the impugned order is unsustainable and accordingly, I set aside the same and declared that as per the date of births mentioned in the school registers and the school leaving certificates and the affidavits of the parents of the petitioners, petitioners are juveniles on the date of the alleged occurrence. It is therefore, directed that their prosecution shall be conducted by the concerned Juvenile Justice Board. The learned Special Judge-cum-Sessions Judge is directed to transmit the records of the case in respect of the petitioners to the concerned Juvenile Justice Board forthwith. The CRLMC is thus disposed of.