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2017 DIGILAW 660 (CAL)

Ayesha Mondal v. State of West Bengal

2017-08-04

DEBI PROSAD DEY

body2017
JUDGMENT : 1. None appears on behalf of opposite party no. 1 and 2 despite repeated call. Affidavit of service shall be retained with the record. The petitioner has challenged the order dated 29.11.2013 passed by learned Principal Magistrate, Juvenile Justice Board, Burdwan in connection with Ausgram Police Station case no. 67 of 2009 wherein and where under learned Principal Magistrate of Juvenile Justice Board has held that opposite party no. 2 is a minor in terms of the ossification test report of opposite party no.2. 2. A case under Section 493/376 of the Indian Penal Code at the instance of the petitioner was started against opposite party no. 2 and ultimately after completion of investigation charge sheet under Section 376 was filed against opposite party no.2. Considering the age of opposite party no.2 learned Chief Judicial Magistrate has transferred the case to Juvenile Justice Board for inquiry and disposal. 3. The petitioner being aggrieved by such transfer of case to Juvenile Justice Board filed revision application before this Court being CRR no. 3015 of 2011. The specific case that was canvassed before this Court in the aforesaid criminal revisional application is that opposite party no.2 was major at the time of alleged occurrence. After hearing both sides learned Judge passed the following order. “Heard the learned counsel for the parties. The matter is taken up for hearing. It is submitted that this is a case under sections 493/376 of the Indian Penal Code. It is further submitted by Mr. Chatterjee, learned counsel for the petitioner that the victim girl is major. The accused-opposite party no.2 namely Shamim alias Bapi Dafadar, is a minor. As per direction of the Hon’ble Court birth certificate was filed which shows that the opposite party no.2 is a minor. Thereafter the victim girl filed an application before the learned court below for ossification test of the opposite party no.2. The same was rejected after hearing both sides. Probably being influenced by the order of the Hon’ble Court the learned court below rejected the prayer for ossification test of the opposite party no.2. It appears that ossification test is conducted scientifically and there is no harm for conducting such test of a person through there is a contradictory order by the court. Probably being influenced by the order of the Hon’ble Court the learned court below rejected the prayer for ossification test of the opposite party no.2. It appears that ossification test is conducted scientifically and there is no harm for conducting such test of a person through there is a contradictory order by the court. Considering the aforesaid position and after hearing the both sides, I think that in the interest of justice the opposite party no.2 be placed for ossification test. The learned court below is hereby directed to arrange for ossification test of the opposite party no.2 as quickly as possible so that the entire truth will come up. Accordingly, the revisional application along with C.R.A.N. 425 of 2012 is disposed of on contest.” 4. Pursuant to the direction given by learned single Judge opposite party no.2 was placed before the appropriate authority for conducting his ossification test and report was duly submitted before the Juvenile Justice Board at Burdwan. Learned Principal Magistrate has clearly stated in his order dated 29th November, 2013, that as per the ossification test report the age of opposite party no. 2 was ascertained as on the date of examination more than 17 years but less than 18 years. The ossification test was conducted on 12.05.2012 and the occurrence took place on 10th May, 2009. Thus, learned Magistrate was satisfied that on the date of occurrence opposite party no. 2 was a minor. 5. Learned Advocate appearing on behalf of the petitioner contended that no documents in terms of Rule 12 of Juvenile Justice (care and protection of children) Rules, 2007 was ever produced by opposite party no. 2 before the Juvenile Justice Board to prove/ to show his age but the secondary evidence in the form of ossification test, was produced before the Juvenile Justice Board and learned Magistrate has committed grave mistake by accepting the ossification test report as the document to ascertion the age of opposite party no. 2. It is further submitted that learned magistrate ought to have directed opposite party no. 2 to produce necessary documents in terms of Rule 12 of the Juvenile Justice (care and protection of children) Rule, 2007 in order to prove the age of opposite party no.2. 6. Learned Counsel appearing on behalf of the petitioner further contended that the opposite party no. 2 to produce necessary documents in terms of Rule 12 of the Juvenile Justice (care and protection of children) Rule, 2007 in order to prove the age of opposite party no.2. 6. Learned Counsel appearing on behalf of the petitioner further contended that the opposite party no. 2 used to work as a labour in 100 days work and wherefrom it would transpire that the opposite party no. 2 was major at the time of alleged occurrence. It is further submitted that the order passed by learned Magistrate ought to be set aside and a direction be given to the learned Magistrate to ascertain the age of opposite party no.2 afresh in terms of Rule 12 of Juvenile Justice (care and protection of children) Rules, 2007. 7. The order dated 22.02.2012 passed by learned single Judge of this Court in CRR 3015 of 2011 clearly reveals that as per direction of the Hon’ble Court birth certificate of opposite party no. 2 namely Samim alias Bap Dafadar was filed, which shows that opposite party no. 2 is a minor. However, for ascertaining the age of opposite party no. 2 learned Court below was directed to conduct ossification test of opposite party no. 2. 8. In terms of the aforesaid order opposite party no. 2 was examined and ossification test was conducted on 12th May, 2012, which clearly reveals that opposite party no. 2 was a minor on the date of occurrence i.e. on 10th May, 2009. Rule 12(3) (b) clearly reveals that 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. That clearly reveals that the intention of the legislature is to give such benefit to the Juvenile in conflict with law. 9. In the case under reference the birth certificate of opposite party no. 2 was produced in terms of the Court’s order as it appears from the order of CRR 3015 of 2011 dated 22nd February, 2012. However, to be sure of the age of opposite party no. 2 learned single Judge directed for ossification test of opposite party no. 2. In the case under reference the birth certificate of opposite party no. 2 was produced in terms of the Court’s order as it appears from the order of CRR 3015 of 2011 dated 22nd February, 2012. However, to be sure of the age of opposite party no. 2 learned single Judge directed for ossification test of opposite party no. 2. The result of such ossification test clearly reveals that the opposite party no. 2 was minor on the date of such occurrence. Therefore, I do not find any illegality in the order passed by learned Principal Magistrate of Juvenile Justice Board of Burdwan. The revisional application is thus dismissed. Having regard to the age of the case I direct learned Principal Magistrate, Juvenile Justice Board, Burdwan to dispose of the case as early as possible preferably within one year from the date of receipt of this order. 10. Let a copy of this order be forwarded to the learned Principal Magistrate, Juvenile Justice Board, Burdwan forthwith.